We Need Pretrial Detention Reform in Massachusetts

Oct 29, 2014Jessica Morris

Alternatives to bail won't just reduce overcrowding in jails: they will create a more just justice system.

Alternatives to bail won't just reduce overcrowding in jails: they will create a more just justice system.

There is a bill pending in the Massachusetts House Committee on Ways and Means to build a bail jail in Middlesex County. Led by Representative Kay Khan (D-Newton), H.1434 proposes for a new facility for women charged of a crime and awaiting trial. This jail is not for convicted prisoners, but for women who are charged with violent and nonviolent crimes and cannot afford bail.

Three states away in New Jersey, residents are preparing to vote on Ballot Question Number 1, a bail reform legislation, in this November’s election. Signed by Governor Chris Christie (R-NJ), this policy states that dangerous suspects can be held in jail without bail, while non-dangerous suspects can be released through alternatives to bail. Both of these states attempt to tackle the overcrowding issue in jails, but New Jersey’s legislation will alleviate this issue through a long-term and humanizing solution. New Jersey has shown that bail reform is a bipartisan issue that can only be solved through intentional policy.

Massachusetts can learn from New Jersey’s responsible approach. There has been a growth of pre-trial detention in the state. From 2005 to 2014, pre-trial detainees in Massachusetts Department of Correction custody increased by 23 percent. This growth of pre-trial detention significantly impacts women. 34 percent of total female inmates in Massachusetts's jurisdiction this year are awaiting trial, but only 3 percent of total male inmates. Most women awaiting trial in Massachusetts are not able to make bail (80 percent cannot make bail of $2,000 or less and a third cannot make $500 or less). Many need services – not to be in jails. Two-thirds of the women in Massachusetts state prison have a diagnosed mental illness and half of them use psychotropic drugs. Prisons, such as the bail jail proposed in Middlesex County, can exacerbate mental illness when the women truly only need proper substance abuse and mental health treatments.

A study by the Pretrial Justice Institute shows that judges are inclined to assign harsher punishments to pretrial detainees than to those who are able to make bail. Thus, a person’s credibility is determined by money, no matter the verdict. Those who can afford to pay their bail do not undergo the ramifications of being in jail. They are able to continue supporting their families or continue their education. If they cannot afford bail, however, they have to go through the obstacles of pausing their lives and are more likely to commit recidivism; pretrial detainees are six times more likely to return to jail because of the challenges they face once released.

States such as Colorado, Delaware, Kentucky, Maine, Ohio, Virginia, and possibly soon New Jersey have reformed their pretrial systems. Massachusetts needs to join them. Facilities across the state of Massachusetts are overcrowded by up to 155 percent, and this could be alleviated by using electronic monitoring as an alternative to incarceration. New Jersey’s proposed legislation does this by having bail depend on risk and not whether someone can afford to pay to get out of jail. A judge will only present bail as a last resort if electronic monitoring might not assure the defendant's appearance at their trial or if he or she is believed to pose a threat to public safety.

Massachusetts has the political will to take the same path as New Jersey and reform its system. Through legislation similar to New Jersey’s bail reform, pretrial detainees charged with nonviolent crimes should be enrolled in an electronic monitoring program instead of entering a facility. There is a high financial cost for the state and social cost for defendants of having people await trials in jails. An electronic monitoring program is cheaper on both fronts. Defendants would have the ability to return to their lives fully and freely until they are tried. The idea of innocent until proven guilty is currently obsolete in Massachusetts because of the bail system, but it can be restored through reform that ensures liberty prior to trials.

Jessica Morris is the Roosevelt Institute | Campus Network Senior Fellow for Equal Justice. She studies politics and gender studies at Mount Holyoke College.

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Daily Digest - October 1: State Law Puts Profits Ahead of Primary Education

Oct 1, 2014Rachel Goldfarb

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Arkansas Internet Law Gouges Schoolkids (Bloomberg View)

Click here to subscribe to Roosevelt First, our weekday morning email featuring the Daily Digest.

Arkansas Internet Law Gouges Schoolkids (Bloomberg View)

Roosevelt Institute Fellow Susan Crawford says support for the current law, which prohibits Arkansas from connecting K-12 schools to its high-speed fiber network, puts telecoms' profits ahead of kids.

Long-Term Jobless Perfectly Employable, New Report Finds (WSJ)

Pedro da Costa looks at a new study from the Economic Policy Institute, which says that while any unemployment creates serious setbacks, long-term unemployment doesn't create special skill loss.

The Hole in Holder’s Legacy (NYT)

Eric Holder had some real successes as Attorney General, but his efforts to prosecute the crimes of the financial crisis were "notoriously laggard," writes Joe Nocera.

The A.I.G. Trial Is a Comedy (New Yorker)

John Cassidy asks why this case, in which former American International Group CEO Hank Greenberg claims the company's bailout violated the Constitution, was even allowed to get to trial.

Prison Bankers Cash in on Captive Customers (Center for Public Integrity)

Daniel Wagner reports on how financial services companies profit off the families of prison inmates, who use these high-fee services so their relatives can buy basics like warm winter clothing.

Trust Is Waning, and Inequality May Be to Blame (Pacific Standard)

A new study examining what circumstances impact people's trust in institutions and one another finds that trust in other people drops as inequality rises, writes Nathan Collins.

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Daily Digest - September 30: Incarceration Keeps Growing, No Matter the Cost

Sep 30, 2014Rachel Goldfarb

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The Score: Why Prisons Thrive Even When Budgets Shrink (The Nation)

Click here to subscribe to Roosevelt First, our weekday morning email featuring the Daily Digest.

The Score: Why Prisons Thrive Even When Budgets Shrink (The Nation)

Roosevelt Institute Fellow Mike Konczal and Bryce Covert look at the growth of incarceration even in times when presidents preach against "big government," which the prison system certainly is.

Europe’s Austerity Zombies (Project Syndicate)

Roosevelt Institute Chief Economist Joseph Stiglitz says that European countries' continued push for austerity, which isn't fixing their economies, is tragic in light of the people who suffer without work.

Revisiting the Lehman Brothers Bailout That Never Was (NYT)

James B. Stewart and Peter Eavis report on previously unknown analysis from the New York Federal Reserve suggesting that the Fed could bail out Lehman Brothers. The analysis never reached top officials.

It’s the Inequality, Stupid (In These Times)

Emphasizing inequality is the best chance that Democrats have of engaging working-class voters who swing elections, writes David Moberg.

New York Mayor de Blasio Plans Expansion of Living Wage (Reuters)

De Blasio plans to sign an executive order that will expand the law to cover an additional 18,000 jobs and increase the living wage to $13.13 for workers without benefits, writes Alex Dobuzinskis.

California Pension Fund Gives the Boot to Hedge Funds (AJAM)

Dean Baker praises California's public pension fund for ending investments in hedge funds, which charge high fees. He says that funds should make the contracts that lay out these fees public.

Killing the "Nuclear Option" Will Not Save the Senate. It Will Ruin Obama's Final Two Years. (TNR)

When Senate Republicans say that they want to revoke the Democrats' "nuclear option," which eliminated filibusters on presidential appointments, they're planning a blockade, writes Brian Beutler.

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Daily Digest - September 22: Minimum Wage Boost Would Trickle Up for All

Sep 22, 2014Rachel Goldfarb

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Pay Pressure (Financial Times)

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Pay Pressure (Financial Times)

In a survey of economists about how to jump-start wage growth, Roosevelt Institute Chief Economist Joseph Stiglitz calls for fiscal stimulus, a minimum wage increase, and tax incentives for labor-intensive investment.

Holder Launches Historic Study on Police Bias (Melissa Harris-Perry)

As Saturday's guest host, Roosevelt Institute Fellow Dorian Warren speaks with the Director of the Center for Policing Equity about the significance of the Attorney General's new plan to reduce bias.

Paul Ryan May Have Found a Trick to Make His Tax Plan Add Up (TNR)

Danny Vinik explains how dynamic scoring will allow Rep. Ryan to claim that his tax reform plan is mathematically possible while remaining revenue-neutral.

Climate Change is War – and Wall Street is Winning (AJAM)

Nathan Schneider writes that corporate influence has been too strong in international discussions of how to fight climate change, and argues that our economic system must shift to save the planet.

Is Obama Going Easy On Banks That Break the Law? (In These Times)

David Sirota looks at the reduction of sanctions on Credit Suisse, and says that this action by the administion suggests that some financial institutions are being treated as above the law.

Why Poor Students Struggle (NYT)

For lower-income college students at elite universities, the academics aren't a problem, writes Vicki Madden, but the social differences between classes make life on campus difficult.

New on Next New Deal

Ken Burns’s New Documentary Reveals the Human Side of the Roosevelts – And Our Deep Connection To Their Legacy

Roosevelt Institute President and CEO Felicia Wong praises The Roosevelts for depicting these giants of progressive policy with a humanity that helps us understand why they pushed for change.

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How Much are Local Civil Asset Forfeiture Abuses Driven By the Feds? A Reply to Libertarians

Sep 12, 2014Mike Konczal

(Wonkish, as they say.)

I wrote a piece in the aftermath of the Michael Brown shooting and subsequent protests in Ferguson noting that the police violence, rather than a federalized, militarized affair, should be understood as locally driven from the bottom-up. Others made similar points, including Jonathan Chait (“Why the Worst Governments in America Are Local Governments”) and Franklin Foer (“The Greatest Threat to Our Liberty Is Local Governments Run Amok”). Both are smart pieces.

The Foer piece came into a backlash on a technical point that I want to dig into, in part because I think it is illuminating and helps proves his point. Foer argued that “If there’s a signature policy of this age of unimpeded state and local government, it’s civil-asset forfeiture.” Civil-asset forfeiture is where prosecutors press charges against property for being illicit, a legal tool that is prone to abuse. (I’m going to assume you know the basics. This Sarah Stillman piece is fantastic if you don’t, or even if you do.)

Two libertarian critics jumped at that line. Jonathan Blanks of the Cato Institute wrote “the rise of civil asset forfeiture is a direct result of federal involvement in local policing. In what are known as ‘equitable sharing’ agreements, federal law enforcement split forfeiture proceeds with state and local law authorities.”

Equitable sharing is a system where local prosecutors can choose to send their cases to the federal level and, if successful, up to 80 percent of the forfeited funds go back to local law enforcement. So even in states where the law lets law enforcement keep less than 80 percent of funds to try and prevent corruption (by handing the money to, say, roads or schools), “federal equitable sharing rules mandate those proceeds go directly to the law enforcement agencies, circumventing state laws to prevent “‘policing for profit.’”

Lucy Steigerwald at Vice addresses all three posts, and make a similar point about Foer. “Foer mentions the importance of civil asset forfeiture while skirting around the fact that forfeiture laws incentivize making drug cases into federal ones, so as to get around states with higher burdens of proof for taking property...Include a DEA agent in your drug bust—making it a federal case—and suddenly you get up to 80 percent of the profits from the seized cash or goods. In short, it’s a hell of a lot easier for local police to steal your shit thanks to federal law.”

Equitable sharing, like all law in this realm, needs to be gutted yesterday, and I’m sure there’s major agreement on across-the-board reforms. But I think there’s three serious problems with viewing federal equitable sharing as the main driver of state and local forfeitures.

Legibility, Abuse, Innovation

The first is that we are talking about equitable sharing in part because it’s only part of the law that we are capable of measuring. There’s a reason that virtually every story about civil asset forfeiture highlights equitable sharing [1]. It’s because it’s one of the few places where there are good statistics on how civil asset forfeiture is carried out.

As the Institute for Justice found when they tried to create a summary of the extent of the use of civil asset forfeiture, only 29 states have a requirement to record the use of civil asset forfeiture at all. But most are under no obligation to share that information, much less make it accessible. It took two years of FOIA requests, and even then 8 of those 29 states didn’t bother responding, and two provided unusable data. There's problematic double-counting and other problems with the data that is available. As they concluded, “Thus, in most states, we know very little about the use of asset forfeiture” at the county and state level.

We do know about it at the federal level however. You can look up the annual reports of the federal Department of Justice’s Assets Forfeiture Fund (AFF) and the Treasury Forfeiture Fund (TFF) of the U.S. Department of the Treasury. There you can see the expansion of the program over time.

You simply can’t do this in any way at the county or state levels. You can’t see statistics to see if equitable sharing is a majority of forfeiture cases - though, importantly, equitable sharing was the minority of funds in the few states the Institute for Justice were able to measure, and local forfeitures were growing rapidly - or the relationship between the two. It’s impossible to analyze the number of forfeiture cases (as opposed to amount seized), which is what you’d want to measure to see the increased aggressiveness in its use on small cases.

This goes to Foer’s point that federal abuses at least receive some daylight, compared to the black boxes of county prosecutor’s offices. This does, in turn, point the flashlight towards the Feds, and gives the overall procedure a Federal focus. But this is a function of how well locals have fought off accountability.

The second point is that the states already have laws that are more aggressive than the Fed’s. A simple graph will suffice (source). The Feds return 80 percent of forfeited assets to law enforcement. What do the states return?

Only 15 states have laws that that are below the Fed’s return threshold. Far, far more states already have a more expansive “policing for profit” regime set in at the state level than what is available at the Federal level. It makes sense that for those 15 states equitable sharing changes the incentives [2], of course, and the logic extends to the necessary criterion to make a seizure. But the states, driven no doubt by police, prosecutors and tough-on-crime lawmakers, have written very aggressive laws in this manner. They don't need the Feds to police for profit; if anything they'd get in the way.

The third is that the innovative expansion of civil asset forfeiture is driven at the local level just as much as the federal level. This is the case if only because equitable sharing can only go into effect if there’s a federal crime being committed. So aggressive forfeiture of cars of drunk drivers or those who hire sex workers (even if it your wife’s car) is a local innovation, because there’s no federal law to advance them.

There’s a lot of overlap for reform across the political spectrum here, but seeing the states as merely the pawns of the federal government when it comes to forfeiture abuse is problematic. Ironically, we see this precisely because we can’t see what the states are doing, but the hints we do know point to awful abuses, driven by the profit motive from the bottom-up.

[1]  To take two prominent, excellent recent examples. Stillman at the New Yorker: “through a program called Equitable Sharing…At the Justice Department, proceeds from forfeiture soared from twenty-seven million dollars in 1985 to five hundred and fifty-six million in 1993.”

And Michael Sallah, Robert O’Harrow Jr., Steven Rich of the Washington Post: “There have been 61,998 cash seizures made on highways and elsewhere since 9/11 without search warrants or indictments through the Equitable Sharing Program, totaling more than $2.5 billion.”

If either wanted to get these numbers at the state and local levels it would be impossible.

[2] I understand why one want to put an empirical point on it, and the law needs to be changed no matter what, but the core empirical work relating payouts to equitable sharing isn’t as aggressive as you’d imagine. Most of the critical results aren’t significant at a 5% level, and even then you are talking about a 25% increase in just equitable sharing (as opposed to the overall amount forfeited by locals, which we can’t measure) relative to 100% change in state law payouts.

Which makes sense - no prosecutor is going to be fired for bringing in too much money into the school district, if only because money is fungible on the back end.

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(Wonkish, as they say.)

I wrote a piece in the aftermath of the Michael Brown shooting and subsequent protests in Ferguson noting that the police violence, rather than a federalized, militarized affair, should be understood as locally driven from the bottom-up. Others made similar points, including Jonathan Chait (“Why the Worst Governments in America Are Local Governments”) and Franklin Foer (“The Greatest Threat to Our Liberty Is Local Governments Run Amok”). Both are smart pieces.

The Foer piece came into a backlash on a technical point that I want to dig into, in part because I think it is illuminating and helps proves his point. Foer argued that “If there’s a signature policy of this age of unimpeded state and local government, it’s civil-asset forfeiture.” Civil-asset forfeiture is where prosecutors press charges against property for being illicit, a legal tool that is prone to abuse. (I’m going to assume you know the basics. This Sarah Stillman piece is fantastic if you don’t, or even if you do.)

Two libertarian critics jumped at that line. Jonathan Blanks of the Cato Institute wrote “the rise of civil asset forfeiture is a direct result of federal involvement in local policing. In what are known as ‘equitable sharing’ agreements, federal law enforcement split forfeiture proceeds with state and local law authorities.”

Equitable sharing is a system where local prosecutors can choose to send their cases to the federal level and, if successful, up to 80 percent of the forfeited funds go back to local law enforcement. So even in states where the law lets law enforcement keep less than 80 percent of funds to try and prevent corruption (by handing the money to, say, roads or schools), “federal equitable sharing rules mandate those proceeds go directly to the law enforcement agencies, circumventing state laws to prevent “‘policing for profit.’”

Lucy Steigerwald at Vice addresses all three posts, and make a similar point about Foer. “Foer mentions the importance of civil asset forfeiture while skirting around the fact that forfeiture laws incentivize making drug cases into federal ones, so as to get around states with higher burdens of proof for taking property...Include a DEA agent in your drug bust—making it a federal case—and suddenly you get up to 80 percent of the profits from the seized cash or goods. In short, it’s a hell of a lot easier for local police to steal your shit thanks to federal law.”

Equitable sharing, like all law in this realm, needs to be gutted yesterday, and I’m sure there’s major agreement on across-the-board reforms. But I think there’s three serious problems with viewing federal equitable sharing as the main driver of state and local forfeitures.

Legibility, Abuse, Innovation

The first is that we are talking about equitable sharing in part because it’s only part of the law that we are capable of measuring. There’s a reason that virtually every story about civil asset forfeiture highlights equitable sharing [1]. It’s because it’s one of the few places where there are good statistics on how civil asset forfeiture is carried out.

As the Institute for Justice found when they tried to create a summary of the extent of the use of civil asset forfeiture, only 29 states have a requirement to record the use of civil asset forfeiture at all. But most are under no obligation to share that information, much less make it accessible. It took two years of FOIA requests, and even then 8 of those 29 states didn’t bother responding, and two provided unusable data. There's problematic double-counting and other problems with the data that is available. As they concluded, “Thus, in most states, we know very little about the use of asset forfeiture” at the county and state level.

We do know about it at the federal level however. You can look up the annual reports of the federal Department of Justice’s Assets Forfeiture Fund (AFF) and the Treasury Forfeiture Fund (TFF) of the U.S. Department of the Treasury. There you can see the expansion of the program over time.

You simply can’t do this in any way at the county or state levels. You can’t see statistics to see if equitable sharing is a majority of forfeiture cases - though, importantly, equitable sharing was the minority of funds in the few states the Institute for Justice were able to measure, and local forfeitures were growing rapidly - or the relationship between the two. It’s impossible to analyze the number of forfeiture cases (as opposed to amount seized), which is what you’d want to measure to see the increased aggressiveness in its use on small cases.

This goes to Foer’s point that federal abuses at least receive some daylight, compared to the black boxes of county prosecutor’s offices. This does, in turn, point the flashlight towards the Feds, and gives the overall procedure a Federal focus. But this is a function of how well locals have fought off accountability.

The second point is that the states already have laws that are more aggressive than the Fed’s. A simple graph will suffice (source). The Feds return 80 percent of forfeited assets to law enforcement. What do the states return?

Only 15 states have laws that that are below the Fed’s return threshold. Far, far more states already have a more expansive “policing for profit” regime set in at the state level than what is available at the Federal level. It makes sense that for those 15 states equitable sharing changes the incentives [2], of course, and the logic extends to the necessary criterion to make a seizure. But the states, driven no doubt by police, prosecutors and tough-on-crime lawmakers, have written very aggressive laws in this manner. They don't need the Feds to police for profit; if anything they'd get in the way.

The third is that the innovative expansion of civil asset forfeiture is driven at the local level just as much as the federal level. This is the case if only because equitable sharing can only go into effect if there’s a federal crime being committed. So aggressive forfeiture of cars of drunk drivers or those who hire sex workers (even if it your wife’s car) is a local innovation, because there’s no federal law to advance them.

There’s a lot of overlap for reform across the political spectrum here, but seeing the states as merely the pawns of the federal government when it comes to forfeiture abuse is problematic. Ironically, we see this precisely because we can’t see what the states are doing, but the hints we do know point to awful abuses, driven by the profit motive from the bottom-up.

[1]  To take two prominent, excellent recent examples. Stillman at the New Yorker: “through a program called Equitable Sharing…At the Justice Department, proceeds from forfeiture soared from twenty-seven million dollars in 1985 to five hundred and fifty-six million in 1993.”

And Michael Sallah, Robert O’Harrow Jr., Steven Rich of the Washington Post: “There have been 61,998 cash seizures made on highways and elsewhere since 9/11 without search warrants or indictments through the Equitable Sharing Program, totaling more than $2.5 billion.”

If either wanted to get these numbers at the state and local levels it would be impossible.

[2] I understand why one want to put an empirical point on it, and the law needs to be changed no matter what, but the core empirical work relating payouts to equitable sharing isn’t as aggressive as you’d imagine. Most of the critical results aren’t significant at a 5% level, and even then you are talking about a 25% increase in just equitable sharing (as opposed to the overall amount forfeited by locals, which we can’t measure) relative to 100% change in state law payouts.

Which makes sense - no prosecutor is going to be fired for bringing in too much money into the school district, if only because money is fungible on the back end.

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The Ferguson Challenge to the Libertarians

Aug 22, 2014Mike Konczal

Many people are pointing to the police violence unfolding in Ferguson, Missouri as part of a “libertarian moment.” Dave Weigel of Slate writes “Liberals are up in arms about police militarization. Libertarians are saying: What took you so long?” Tim Carney of the Washington Examiner notes that the events in Ferguson bolster the claim that we are experiencing a libertarian moment because “libertarianism’s warnings today ring truer than ever.”

It will be a great thing if the horror of what is going on builds a broader coalition for putting the excess of the carceral state in check. But I also think that Ferguson presents a problem for libertarian theory about this situation in particular and the state in general. Their argument is a public choice-like story in which the federal government is the main villain. But this will only tell a partial story, and probably not even the most important one. And, as the deeper story of the town is told, the disturbing economics of the city look similar to what the right thinks is the ideal state. Let’s take these in turn.

Bottom-Up Militarization

People on the right are telling a story where the problems of the police are primarily driven by the federal government. As Rand Paul said: “Not surprisingly, big government has been at the heart of the problem.” Big government here is strictly a federal phenomenon though, one where “Washington has incentivized the militarization of local police precincts.” Paul Ryan’s comment on Ferguson is telling: "But in all of these things, local control, local government, local authorities who have the jurisdiction, who have the expertise, who are actually there are the people who should be in the lead." (h/t Digby) The culprits in these criticisms are usually programs, accelerated after the start of the War on Terror, that give military surplus to local police.

But rather than just a top-down phenomenon of centralized, federal bureaucrats, the police violence we see is just as much a bottom-up, locally-driven affair. “Militarized” police equipment didn’t shoot Michael Brown, or kill Eric Garner in a chokehold. And aggressive police reactions to protests haven’t required extensive military equipment over the past 40 years.

As Tamara Nopper and Mariame Kaba note in the pages of Jacobin, the idea that there is suddenly a “militarized” police force here betrays that the militarization began in the 1960s in response to the urban crisis. And even though militarized dollars have flowed to all parts of the country, it is in black urban areas where the equipment has been deployed in an aggressive manner by local authorities. And militarization isn't just about equipment, but about the broader framework of mass incarceration and zero-tolerance, order-maintenance policing.

You can see the consequences of this through simple polls. As Dorian Warren notes, “Because for black Americans, what Sen. Paul disparages as ‘big government’ is actually the government we trust most…blacks are the least likely [racial and economic group] to trust their local governments.” Though these military equipment programs, which give away all kinds of odd things, are a serious problem and should be curtailed, they should be placed within the context of a criminal justice system that is punitive towards minorities and is among the most expansive in the world.

This has political consequences. Democrats have been weak on criminal justice issues. But for several years Blue Dog Democrats, lead by Jim Webb, have pushed for reform. But Webb's big bill to bring together non-binding suggestions for reform, the National Criminal Justice Commission Act, wasn’t blocked by centrist Democrats. It was blocked by libertarians and conservatives. Most Republicans, including Tom Coburn and Rand Paul, voted against it on the basis of “states’ rights.” Commentators on the right found the arguments dubious and scandalous, but this will become more and more of an issue if the problem is just one of the federal government.

The Right-Wing Dream City

If you are a libertarian, you probably have two core principles when it comes to how the government carries out its duties. The first is that people should pay taxes in direct proportion to how much they benefit from government services. The government is like another business, and to the extent it can provide public-like goods the market will not, people should pay only as much as they benefit from them. Taxes should essentially be the individual's price of “purchasing” a government service.

You also probably want as much of what the government does to be privatized as possible. Government services provided by private firms use the profit motive to seek out efficiencies and innovation to provide the best service possible. But even if it doesn’t, the right’s public choice theory tells us that private agents will do a better job tending to services because of the essential impulse of the public state to corruption.

So what do we see in Ferguson? It’s becoming clear that there’s a deep connection between an out-of-control criminal justice system and debt peonage. As Vox reports, “court fees and fines are the second largest source of funds for the city; $2.6 million was collected in 2013 alone.”

These fines that come from small infractions will grow rapidly when people can’t afford to pay them immediately, much less hire lawyers to handle the complicated procedures. So you have a large population with warrants and debts living in a city that functions as a modern debtors’ prison. This leads to people functioning as second-class citizens in their own communities. And as Jelani Cobb notes in the New Yorker, this debtor status keeps many citizens of Ferguson off the streets, not protesting or acting as political agents.

How did we get here? As Sarah Stillman noted in a blockbuster New Yorker story, this is referred to as an “offender-funded” justice system, one that aims to “to shift the financial burden of probation directly onto probationers.” How? “Often, this means charging petty offenders—such as those with traffic debts—for a government service that was once provided for free.”

As Stillman notes, this process has grown alongside state-level efforts to privatize probation and other incarceration alternatives by replacing them with for-profit companies. (Missouri is one of many states that does this.) There are significant worries that this privatized probation industry has severe corruption and abuse problems. Crucially, their incentive is less rehabilitation or judging actual threats to the public, and more to keep people in a permanent debt peonage. The state, in turn, gets funded without having to raise any general taxes.

Having people who “use” the criminal justice system pay for it strikes me as pretty close to the libertarian vision of how taxes should function. And having state power executed by private, profit-seeking entities is the logical outcome of how they think services should function. I’m sure that a libertarian would say that they are against this kind of outcome, though it’s not clear to me how taxation and services along these lines couldn’t do anything other than lead to punitive outcomes. (Perhaps people versed in public choice theory should apply it to what happens when you put public choice theories into practice.)

This is yet another way in which the growth of market society is wedded to the growth of a carceral state. But thinking through this issue can lead you to interesting places. If you think that this offender-funded system is unfair because the poor don’t have the ability to pay for it, you are basically 90% of the way to an argument for progressive taxation. And if you think private parties using coercive power invites abuse, abuses that should be checked by basic mechanisms of democratic accountability, you are also pretty close to an argument for the modern, professionalized, administrative state. Welcome to the team.

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Many people are pointing to the police violence unfolding in Ferguson, Missouri as part of a “libertarian moment.” Dave Weigel of Slate writes “Liberals are up in arms about police militarization. Libertarians are saying: What took you so long?” Tim Carney of the Washington Examiner notes that the events in Ferguson bolster the claim that we are experiencing a libertarian moment because “libertarianism’s warnings today ring truer than ever.”

It will be a great thing if the horror of what is going on builds a broader coalition for putting the excess of the carceral state in check. But I also think that Ferguson presents a problem for libertarian theory about this situation in particular and the state in general. Their argument is a public choice-like story in which the federal government is the main villain. But this will only tell a partial story, and probably not even the most important one. And, as the deeper story of the town is told, the disturbing economics of the city look similar to what the right thinks is the ideal state. Let’s take these in turn.

Bottom-Up Militarization

People on the right are telling a story where the problems of the police are primarily driven by the federal government. As Rand Paul said: “Not surprisingly, big government has been at the heart of the problem.” Big government here is strictly a federal phenomenon though, one where “Washington has incentivized the militarization of local police precincts.” Paul Ryan’s comment on Ferguson is telling: "But in all of these things, local control, local government, local authorities who have the jurisdiction, who have the expertise, who are actually there are the people who should be in the lead." (h/t Digby) The culprits in these criticisms are usually programs, accelerated after the start of the War on Terror, that give military surplus to local police.

But rather than just a top-down phenomenon of centralized, federal bureaucrats, the police violence we see is just as much a bottom-up, locally-driven affair. “Militarized” police equipment didn’t shoot Michael Brown, or kill Eric Garner in a chokehold. And aggressive police reactions to protests haven’t required extensive military equipment over the past 40 years.

As Tamara Nopper and Mariame Kaba note in the pages of Jacobin, the idea that there is suddenly a “militarized” police force here betrays that the militarization began in the 1960s in response to the urban crisis. And even though militarized dollars have flowed to all parts of the country, it is in black urban areas where the equipment has been deployed in an aggressive manner by local authorities. And militarization isn't just about equipment, but about the broader framework of mass incarceration and zero-tolerance, order-maintenance policing.

You can see the consequences of this through simple polls. As Dorian Warren notes, “Because for black Americans, what Sen. Paul disparages as ‘big government’ is actually the government we trust most…blacks are the least likely [racial and economic group] to trust their local governments.” Though these military equipment programs, which give away all kinds of odd things, are a serious problem and should be curtailed, they should be placed within the context of a criminal justice system that is punitive towards minorities and is among the most expansive in the world.

This has political consequences. Democrats have been weak on criminal justice issues. But for several years Blue Dog Democrats, lead by Jim Webb, have pushed for reform. But Webb's big bill to bring together non-binding suggestions for reform, the National Criminal Justice Commission Act, wasn’t blocked by centrist Democrats. It was blocked by libertarians and conservatives. Most Republicans, including Tom Coburn and Rand Paul, voted against it on the basis of “states’ rights.” Commentators on the right found the arguments dubious and scandalous, but this will become more and more of an issue if the problem is just one of the federal government.

The Right-Wing Dream City

If you are a libertarian, you probably have two core principles when it comes to how the government carries out its duties. The first is that people should pay taxes in direct proportion to how much they benefit from government services. The government is like another business, and to the extent it can provide public-like goods the market will not, people should pay only as much as they benefit from them. Taxes should essentially be the individual's price of “purchasing” a government service.

You also probably want as much of what the government does to be privatized as possible. Government services provided by private firms use the profit motive to seek out efficiencies and innovation to provide the best service possible. But even if it doesn’t, the right’s public choice theory tells us that private agents will do a better job tending to services because of the essential impulse of the public state to corruption.

So what do we see in Ferguson? It’s becoming clear that there’s a deep connection between an out-of-control criminal justice system and debt peonage. As Vox reports, “court fees and fines are the second largest source of funds for the city; $2.6 million was collected in 2013 alone.”

These fines that come from small infractions will grow rapidly when people can’t afford to pay them immediately, much less hire lawyers to handle the complicated procedures. So you have a large population with warrants and debts living in a city that functions as a modern debtors’ prison. This leads to people functioning as second-class citizens in their own communities. And as Jelani Cobb notes in the New Yorker, this debtor status keeps many citizens of Ferguson off the streets, not protesting or acting as political agents.

How did we get here? As Sarah Stillman noted in a blockbuster New Yorker story, this is referred to as an “offender-funded” justice system, one that aims to “to shift the financial burden of probation directly onto probationers.” How? “Often, this means charging petty offenders—such as those with traffic debts—for a government service that was once provided for free.”

As Stillman notes, this process has grown alongside state-level efforts to privatize probation and other incarceration alternatives by replacing them with for-profit companies. (Missouri is one of many states that does this.) There are significant worries that this privatized probation industry has severe corruption and abuse problems. Crucially, their incentive is less rehabilitation or judging actual threats to the public, and more to keep people in a permanent debt peonage. The state, in turn, gets funded without having to raise any general taxes.

Having people who “use” the criminal justice system pay for it strikes me as pretty close to the libertarian vision of how taxes should function. And having state power executed by private, profit-seeking entities is the logical outcome of how they think services should function. I’m sure that a libertarian would say that they are against this kind of outcome, though it’s not clear to me how taxation and services along these lines couldn’t do anything other than lead to punitive outcomes. (Perhaps people versed in public choice theory should apply it to what happens when you put public choice theories into practice.)

This is yet another way in which the growth of market society is wedded to the growth of a carceral state. But thinking through this issue can lead you to interesting places. If you think that this offender-funded system is unfair because the poor don’t have the ability to pay for it, you are basically 90% of the way to an argument for progressive taxation. And if you think private parties using coercive power invites abuse, abuses that should be checked by basic mechanisms of democratic accountability, you are also pretty close to an argument for the modern, professionalized, administrative state. Welcome to the team.

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Curbing Campus Sexual Assault is Not About the Money

Aug 19, 2014Hannah Zhang

The cost of sexual assault on college campuses far outweighs that of implementing bipartisan, comprehensive reform.  

The cost of sexual assault on college campuses far outweighs that of implementing bipartisan, comprehensive reform.  

On August 13, I stood with Senator Gillibrand, Manhattan Borough President Gale Brewer, and survivors, among others, at the Senator’s New York press conference on the Campus Accountability and Safety Act (CASA). Currently co-sponsored by a bipartisan group of Senators, eight Democratic and seven Republican, this bill represents a tough but common sense reform. It requires universities to designate Confidential Advisors as a resource for survivors, provide a minimum standard of training to personnel processing sexual assault cases, and conduct an annual survey of all students on sexual violence. For schools that do not comply with these requirements, this bill increases the initial financial penalty to up to one percent of their operating budgets and $150,000 (previously $35,000) for each subsequent violation.

As a student attending a university that struggles to combat sexual assault, I hope that this bill will hold my school accountable in the future. As an advocate for progressive change, I was proud to stand with the Senator on this bill that focuses reforms on survivors. 

While increasing financial penalties is a common sense solution, the seemingly common sense objection is that CASA provides no funding for colleges to implement surveys and hire personnel. This much is true, but is financial cost really an issue compared to the cost that sexual assault imposes upon young women?

In introducing CASA, Senator Gillibrand repeats a powerful tagline—“The price of a college education should not include a 1-in-5 chance of being sexually assaulted,” a statistic from the White House Report on campus sexual assault.

This cost far outweighs a fine that constitutes one percent of a university’s massive total budget or funds set aside to hire staff. For instance, Stanford University’s operating budget of $4.8 billion is more than the national GDPs of Cape Verde and Bhutan combined. While public universities arguably have fewer resources than these private institutions, Chancellor Nancy Zimpher gave the bill her full support on behalf of the SUNY system.

One critic argues that the fines and expenses of compliance would take money away from academic programs. Lawmakers, another critic writes, have stated that the costs would “compromise the education of a college’s entire student body.” These statements neglect the sad truth that campus sexual assault has already compromised the education of countless students. Stopping sexual assault helps campuses to focus on academics, rather than hindering them from doing so.

Talking about money misses the point. The goal of CASA isn’t to fine universities. It’s to incentivize compliance. By investing in the resources now, universities create a safer educational environment for current and prospective students.

Curbing sexual assault should be a priority for our universities for yet another reason. Sexual assault on campuses exists as part of a larger, global problem – violence against women, which remains a significant barrier to full gender equality.

Charlotte Bunch, founder of the Center for Women’s Global Leadership and speaker at the upcoming Women and Girls Rising Conference, said it best in 1997, “Violence against women and girls is the most pervasive violation of human rights in the world today.” Bunch pioneered the inclusion of gender violence in the larger fight for human rights. Her words remain true in today’s world, where almost a third of all women have experienced physical or sexual violence (or both) perpetrated by an intimate partner.

The U.S. has taken action on this issue in the past, most recently reauthorizing the Violence Against Women Act in 2013. We tend not to associate the U.S. with developing countries where wife beating is condoned and women are raped as casualties of war. Yet the evidence that 20 percent of women who step foot on U.S. college campuses face sexual violence proves that our work is far from over. To stand as a global leader in gender equality, the U.S. must start by fixing problems at home.

Hannah Zhang is the Campus Network's External Engagement Coordinator for the Northeast, and a member of the Columbia University chapter. 

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Daily Digest - August 18: Looking for Strong Statements on Ferguson

Aug 18, 2014Rachel Goldfarb

Click here to subscribe to Roosevelt First, our weekday morning email featuring the Daily Digest.

Did Obama’s Response to Ferguson Fall Short? (Melissa Harris-Perry)

Click here to subscribe to Roosevelt First, our weekday morning email featuring the Daily Digest.

Did Obama’s Response to Ferguson Fall Short? (Melissa Harris-Perry)

Roosevelt Institute Fellow Dorian Warren questions why President Obama has avoided unequivocal language to condemn the police state in Ferguson. His segment begins at 6:40.

Why the Liberal Love for Rand Paul is Wrong (MSNBC)

Senator Paul blames big government for what he calls the "erosion" of Black civil liberties, but Dorian Warren counters that local governments do plenty to earn the distrust of the Black community.

Phony Capitalism (Harper's Magazine)

In this excerpt from his recent white paper, Roosevelt Institute Chief Economist Joseph Stiglitz suggests better tax policies could lead to a less economically stratified economy.

‘Slack’ in Job Market Hurts Wage Growth, Chicago Fed Paper Says (WSJ)

The paper notes that the slack labor market, with so many unemployed, has an even stronger impact on wage growth for those whose wages are already low, reports Pedro da Costa.

Paul Ryan’s Welfare Reform Ideas Are Even Worse Than You Think (The Nation)

Michelle Chen says that Ryan's proposal for welfare reform marks poor people as the problem in need of fixing, rather than the economic and social structures that hold up poverty.

20 Tax Dodgers: $240 Million for CEOs, Big Loss for the American People (The Fine Print)

Scott Klinger ties tax-deductible CEO pay to a USA Today list of companies that paid no federal income taxes last quarter, and says the combination highlights just how broken our tax system is today.

New on Next New Deal

Rioting Mainly for Fun and Profit: The Neoconservative Origins of Our Police Problem

Roosevelt Institute Fellow Mike Konczal ties increased use of police force to neoconservative notions of the "urban crisis" as a failure of liberalism to be targeted with harsh enforcement.

Suspensions are Keeping Students of Color from their Diplomas

Roosevelt Institute Summer Academy Fellow Bassem El Remesh argues that Minnesota needs to adopt stricter rules for when suspensions are permitted due to the impact on graduation rates.

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Daily Digest - June 27: NLRB Ruling is Politics as Usual

Jun 27, 2014Rachel Goldfarb

Click here to subscribe to Roosevelt First, our weekday morning email featuring the Daily Digest.

The Myth of America’s Golden Age (POLITICO Magazine)

Click here to subscribe to Roosevelt First, our weekday morning email featuring the Daily Digest.

The Myth of America’s Golden Age (POLITICO Magazine)

Growing up in Gary, Indiana gave Roosevelt Institute Chief Economist Joseph Stiglitz early insight into inequality, which is a result of politics and not an economic inevitability, he says.

Presidential Appointments Were Already a Total Nightmare. They Just Got Worse. (MoJo)

Patrick Caldwell breaks down the NLRB v. Canning decision, and explains how it will increase obstructionism in Congress by reducing real recesses.

National Labor Relations Board v. Noel Canning (Supreme Court)

President's Obama's appointments to the NLRB in December 2011 occurred during a three-day adjournment, not a true recess, so the Supreme Court has ruled the appointments invalid. Justice Breyers delivers the Court's opinion.

What Happened When the City of Boston Asked Teenagers for Help With the Budget (Next City)

Hollie Russon Gilman reports that when 12-25 year olds were given responsibility for $1 million of Boston's budget, they funded parks, the arts, and educational technology.

To Get a Fair Share, Sharing-Economy Workers Must Unionize (AJAM)

Susie Cagle talks to Uber driver Ramzi Reguii about his work to organize his fellow drivers. They've already rallied together to prevent Uber from requiring some drivers to buy new cars.

  • Roosevelt Take: Roosevelt Institute | Campus Network Operations Director Lydia Bowers looks at how the sharing economy exploits unprotected workers.

More Than Three Quarters of Conservatives Say the Poor “Have it Easy” (WaPo)

Christopher Ingraham sees this widespread agreement among conservatives as the most striking result in the Pew Research Center's massive survey of American politics.

The Crisis of Student Loans is Real, No Matter What Pundits Tell You (The Guardian)

David Dayen says the Brookings student debt report fails by focusing on the average income of college graduates overall, which ignores how badly the job market has harmed recent graduates.

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Taking on Big Business Wage Theft

Apr 2, 2014Harmony Goldberg

Lawsuits show that the fight against wage theft is heating up, but workers shouldn't have to sue their employers to get paid what they're owed.

Lawsuits show that the fight against wage theft is heating up, but workers shouldn't have to sue their employers to get paid what they're owed.

Despite the extensive press coverage of the fight of fast-food workers for a $15 hourly wage, one recent development hasn’t gotten much attention: fast food workers around the country have started to win significant wage theft lawsuits against McDonald’s franchisees, to the tune of hundreds of thousands of dollars. These lawsuits raise an important question: How has McDonald’s been able to get away with stealing hundreds of thousands of dollars from low-wage workers? The answer is straightforward. Our system for enforcement has been so severely weakened that many employers are able to regularly violate workers’ basic rights. And the law itself is broken. Its structure allows corporations like McDonald’s to escape responsibility for the conditions in their workplaces.

In February, student guest workers won a lawsuit that charged a McDonald’s franchise in Pennsylvania with wage theft. They had been paid sub-minimum wages, denied overtime pay and charged exorbitant prices for company housing. The Department of Labor required the franchise to pay $205,977 to both guest workers and native-born workers at the franchise. This victory was rapidly followed by a wave of other lawsuits around the country.  

Last week, McDonald’s workers in three cities launched highly publicized cases charging the corporation with wage theft. These workers had experienced many types of wage theft. The workers in California claim that they were not paid for overtime work. In Michigan, workers are asserting that they were required to show up for work but were not allowed to clock in. Workers in New York allege that were not compensated for the time they spent cleaning their uniforms, required to do work off the clock and not paid overtime. The New York suit was almost immediately successful. Last week, seven franchises agreed to settle for almost $500,000.

McDonald’s workers are not alone. Wage theft has become a widespread problem in low-wage industries in the United States. An influential study found that more than two-thirds (68 percent) of workers had experienced some form of wage theft in their previous week of work: they were paid below the minimum wage, not paid for overtime, required to work off the clock or had their breaks limited. An organization of fast food workers in New York City surveyed workers and found that 84% of workers had experienced wage theft in the last year.

Addressing wage theft will take a two-pronged solution: rebuilding the enforcement system in the U.S., and cutting through the smokescreen of subcontracting and franchising to hold employers responsible for the wages and working conditions in their workplaces. 

The enforcement regime in the United States has been significantly weakened over the last several decades. There has been an overall downward trend in funding for the Department of Labor. The number of labor inspectors had plummeted for years. The Obama administration has added new inspectors, but not enough to make up for the long-term decline. Meanwhile, the number of workers who need protection has grown. This pattern has to be turned on its head. If rampant wage theft is to be stopped, we need to radically increase the number of labor inspectors on the ground.

But – as Annette Bernhard points out in a new paper – increased funding is not enough. The enforcement system that we have is not well structured to deal with our current economy. It must be transformed. The penalties for employers who violate workplace regulations must increase. Enforcement agencies should partner with organizations like unions and worker centers that are in daily contact with workers. These organizations can educate workers and employers about workplace regulations, and they can provide an ear to the ground to help identify violators.

Even a radical transformation of the enforcement regime will not be enough in today’s economy. We need to change the law to deal with changes in the structure of employment. Right now, McDonald’s is structured so that the franchise owners are technically considered to be the employers. They are held legally responsible for wage violations in their stores, leaving McDonalds itself off the hook. Both recent legal victories charged franchise owners rather than the McDonald’s corporation itself. McDonald’s is shielded from blame while it continues to reap the majority of the profits that come from mistreating workers.

We need a new definition of what it means to be an employer. The current definition makes it impossible for workers to hold their corporate employers – the ones who are setting the real terms of their work – responsible. The two remaining McDonald’s wage theft cases target both the franchise owners and the McDonald’s corporation itself. That challenges the narrow definition of employer, which limits responsibility to the franchise owner. The time has come for the law to be changed. All employers - from the front-line employers up to top of the employment chain – should be legally recognized as such so they can be held accountable for the conditions in their workplaces.

Wage theft that has become an endemic problem in today’s economy. Low-wage workers should not have to turn – again and again – to private lawsuits as a solution. They deserve the basic right to be paid for their labor. To get there, we need full funding and comprehensive reform of the enforcement system in the United States, and we need legal reforms that hold central employers responsible for the conditions in their workplaces. 

Harmony Goldberg is the Program Manager for the Roosevelt Institute's Future of Work Initiative.

Photo copyright Annette Bernhardt, via Creative Commons license.

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