Bank of America Settlement and the Need for Legal Aid Lawyers

Last week, Bank of America reached a record-setting $16.65 billion settlement with the Department of Justice for selling toxic mortgage securities during the housing boom. The agreement includes $30 million for states to distribute to their legal aid programs. This is encouraging news for the 1.75 million homeowners who are still in default on their mortgages, as well as the 9.5 million borrowers who are underwater and at risk of foreclosure.  But it’s not enough.

One of the best ways to prevent unnecessary foreclosures is to provide struggling families with a legal aid lawyer.  While the state guarantees legal representation for any criminal proceeding, there is no such guarantee in civil cases. Therefore, access to fair representation depends largely on the availability of free legal aid lawyers who have a long track record of helping people with no other options—such as battered spouses, people with disabilities, parents seeking child support, homeless veterans, and others without means.

Legal aid lawyers have the necessary training to help homeowners navigate the byzantine mortgage servicing system. They can identify mortgages that were illegal or predatory, and also help families make their mortgage payments by securing resources like unpaid wages, child support, public benefits, or unemployment insurance. Legal aid programs have saved many thousands of homes since the start of the financial crisis, but recently have struggled to secure funding for their vital work.  The Bank of America settlement will hopefully be helpful in this regard  but we need to do much more.

Early in the foreclosure crisis, the Center for Responsible Lending, a national advocacy group, received a $15 million grant for an innovative grant-making enterprise called the Institute for Foreclosure Legal Assistance (IFLA).  Over the course of three years, IFLA more than doubled the number of attorneys devoted to foreclosure prevention work and created a national infrastructure of training, informational materials, and networking that served as a powerful force multiplier. The program ultimately reached tens of thousands of borrowers either through individual assistance, broadly applicable policy changes, or access to critical information and materials.

Yet funding for IFLA was only available for three years, and at the end of that period, IFLA closed its doors. Since then, resources for foreclosure prevention work have dwindled even as the significant risk of foreclosure for millions of homeowners continues. Yet the IFLA infrastructure still exists, and an infusion of funds could immediately be put toward productive use without the need to build a new program.

While the Bank of America settlements directs monies to states, there is another source of federal monies that could be used to restart IFLA’s critical work: the remaining funds from the Independent Foreclosure Review (IFR).

The IFR was initiated when financial regulators found evidence that mortgage servicers had engaged in rampant misconduct when troubled borrowers came to them for help with their mortgages. The regulators first attempted to review every case individually, but that effort foundered. Instead, they decided to compensate homeowners who were most likely to have been harmed by the servicers, setting aside $3.6 billion for this effort. Borrowers ultimately claimed roughly 86 percent of the monies set aside but approximately $500 million remains unclaimed.

Regulators are considering giving those remaining funds to states for their “unclaimed funds” accounts in case homeowners file late claims. However, under this scenario, it is unlikely that much of that money will end up in the hands of homeowners seeking compensation. In fact, according to a recent letter to federal regulators from the National Housing Resource Center—an advocate for the nonprofit housing counseling community—only 2.8 percent of unclaimed funds held by New York State, and about 6 percent held by the state of Texas, reach the rightful owners every year. These funds are much more likely to end up in a state’s general funds where they could be used for just about anything, as has occurred with proceeds from other mortgage settlements.

Instead, regulators should send the states only the amount of remaining IFR funds that are likely to be claimed by homeowners. The rest of the money should be used for other foreclosure prevention efforts—including re-funding IFLA—to reinvigorate critical civil legal aid efforts, prevent unnecessary foreclosures, and help stabilize communities that are still being left behind in the economic recovery.

With the Bank of America agreement, hundreds of billions of dollars have now been collected in settlements with lenders and servicers, and families and neighborhoods should be far better off than they are now. Adequately funding national, state and local civil legal aid programs is one of the most effective ways to ensure that these settlements provide meaningful assistance to the people and communities that have been hit the hardest by the bad behavior of financial institutions.




In Our Backyard: No, Child Survivors of Sex Trafficking Are Not ‘Legitimate Offenders’ Of Prostitution

This post originally appeared at ThinkProgress.

Even though the FBI has identified Washington, D.C. as a high-frequency area for sex trafficking of minors, city officials there are expressing reservations about a critical component of an anti-trafficking law that advocates say would expand protections for survivors of this violence.

Nationally, the average age of entry into commercial sexual exploitation is 11-14 years old, and many of these survivors are lured by traffickers with false promises of economic security and emotional support.  Some don’t enter through a trafficker, but simply because they need to meet their basic needs of food and shelter. City Councilmember Mary Cheh and anti-trafficking advocates claim that the “Sex Trafficking of Minors Prevention Act” would take important steps toward changing that.

The proposed legislation would increase public awareness, boost reporting of missing and runaway minors who are especially vulnerable to trafficking, improve training for survivor identification, and expand access to services by requiring the Metropolitan Police Department (MPD) to refer minors to providers. The measure also includes a “safe harbor” provision that would require MPD to treat all minors suspected of engaging in commercial sex as survivors of trafficking, instead of arresting and charging them. National anti-trafficking advocates such as the Polaris Project support these safe harbor laws because they believe treating survivors as criminals instead of victims is re-traumatizing and harmful.

Treating survivors as criminals instead of victims is re-traumatizing and harmful.

Despite strong advocate support for the legislation, Paul A. Quander Jr., the Deputy Mayor for Public Safety and Justice — who is tasked with overseeing the police department — objects to the safe harbor proposal, among other provisions. At a public hearing on the legislation earlier this month, Quander claimed that some minors arrested for the crime of prostitution are “legitimate offenders;” that some “prostitute through their own volition;” and that some “have procurement duties amongst a group of friends, who have decided that payment for sexual favors is the best way to gain monetary security.”

When asked for additional comment on these opinions, a representative for Quander stated, “Deputy Mayor Quander believes his testimony from last month is quite straightforward and speaks for itself. Nothing has changed since then, and he does not have anything to add to it.”

Councilmember Cheh, who introduced the anti-sex trafficking legislation alongside three other lawmakers, acknowledged to ThinkProgress that the bill still requires some adjustments. However, she believes that the legislation will “expand the possibility that people can get help.”

Advocates concerned with victim-blaming more forcefully objected to Quander’s assessment of the minors who are arrested for prostitution.

“Under the Trafficking Victims Protection Act, any child who is sold for sex is automatically a sex trafficking victim — full-stop,” Andrea Powell, who founded FAIR Girls, told ThinkProgress. “Children cannot choose to engage in prostitution in this country and those who buy them are having sex with a victim. When a police officer arrests a child for prostitution, they are arresting the victim.  This is a human rights issue for the District and the country.”

“Children under 18 who have been sexually exploited deserve support and services, not prosecution,” Audrey Roofeh of the Polaris Project added.

Ultimately, the Deputy Mayor’s reluctance to support a core provision of the legislation may delay benefits for marginalized groups that are particularly victimized. Advocates comment that this legislation, if passed, would especially benefit runaway, low-income, disabled, and LGBT youth, who are all at increased risk of exploitation.  Other groups, such as survivors of sexual abuse and undocumented immigrants, are also disproportionately targeted because they are already vulnerable.

“The vast majority (of minors) are from families living in extreme poverty because traffickers prey on vulnerable children,” Powell explained to ThinkProgress. “Traffickers want to take advantage of young people who won’t be missed. Of those 300+ American girl victims we’ve served, only two had missing children reports. The majority were not reported missing because they were in the foster care system. Instead, they are listed as repeat runaways and non-critical missing…. Pimps tell their young victims that if they speak up, they will just be arrested and treated as prostitutes. They are told no one will believe them and they are scared of the police.”

Despite the prevalence of sex trafficking of minors, the District’s human trafficking laws are currently ranked in the bottom half of all states by the Polaris Project. Mayor Vincent Gray’s administration has yet to take a formal position on Cheh’s bill, which is awaiting markup.



The Poverty of Relentless Disappointment: Rich Hill and a Vanishing American Dream

Rich Hill, Missouri, is about an hour and twenty minutes from Kansas City by car. According to the Census Bureau, its 2012 population was 1,341. Median household income was about $29,800, and its poverty rate was just over 27 percent — nearly double the level for Missouri and the country, but about the same as the U.S. rate for African Americans and Hispanics; the difference is that 98 percent of this poor town is white.

That’s the setting for Andrew Droz Palermo and Tracy Droz Tragos’s 2014 documentary, Rich Hill.

First we meet Andrew. “We’re not trash. We’re good people,” says the teenager. He recounts his family’s many recent moves (they’ll be uprooted three more times before the film is over), and introduces us to his sister, whom he dotes on, and his parents. His mom is possibly developmentally disabled and is missing most of her teeth. When he can, Andrew works with his father, who does “oddball jobs and stuff.” His dad is pretty good natured about it all, or at least inured to it: “You learn to survive,” he says.

When Andrew’s dad dreams, he usually dreams small, imagining a summer with enough work that he can “take the kids down to Wal-Mart, or the dollar store, and let ‘em buy whatever they want. . . . in a reasonable amount. . . .about $400 apiece worth of stuff.” He laughs at the implausibility of it.

Appachey is a bit younger; we meet him as he comes home to a dirty, crowded house, and lights a cigarette from the coils of a beat-up toaster. He tells us that his father disappeared one night when he was six and never returned. Appachey has been diagnosed with Obsessive-Compulsive Disorder and Attention Deficit Disorder, and may have Asperger’s, says his mom, who, lying in bed with a cigarette, appears initially to be cold and hard. But as we hear more from her, it seems she’s just worn, disappointed by her life.  She says she never had a chance, going straight from her mother’s house to marriage at 17 and caring for a growing number of children. Appachey is angry, cruel to his siblings, and looking for trouble. He’s soon enough in juvenile court and sentenced to a detention facility by the film’s end.

Harley, the third teen featured, tells us that he’s on medication to control his temper while we watch him shop for a hunting knife. His mom is in prison, and she too has just had the last of her teeth pulled. He lives with his grandmother, who is supporting them with the help of a small food stamp allowance. Harley tells us that he was raped by his stepfather, who, we’ll learn, his mother then tried to kill — it’s why she’s in prison. Harley’s always on the verge of erupting in frustration and rage.

Everyone here seems exhausted and resigned to their fate. That’s not irrational, given that even those who seem to have some hope, like Andrew, barely have a chance, so deep and broad are the forces arrayed against them: A child born poor in the U.S. is likely to remain poor; and depending upon where you live, the odds of escaping such circumstances are incredibly low. People try as best they can, but trying doesn’t correlate with success. And that’s the crucial lesson.

People try as best they can, but trying doesn’t correlate with success.

Imagine you are Harley: How will you escape your status? Will you get therapy? A more effective drug regime? Tutoring to get through school? Start saving for college? Who will pay for these things? Will you get your mom out of prison? Improve your grandmother’s earning’s power? What would you do to move into the middle class if you were this particular boy?

Many viewers and critics will see much of what is portrayed in the film as “culture,” but it’s actually structure: the product of decades of disinvestment from communities like this one, which leaves behind depressed, isolated, local economies with no jobs, a dwindling tax base, and nothing to attract business or new residents; aging, dilapidated housing stock; underfunded, inferior schools; little or no access to health care and other social services; and few people around who aren’t as poor as you are. This segregation of poor people matters, producing what social scientists call “concentration effects.” Thus, disability, physical illness, and mental illness are more common in poor families and in poor places.  The fact that there are lots of people medicated in Rich Hill — Andrew’s mom, Appachey, and Harley, at least — shouldn’t surprise us.

Nor should it surprise us that so many in Rich Hill have bad teeth or no teeth at all — it’s a clear physical marker of poverty in the U.S., and another way in which disadvantages accumulate: if you’re too poor for dental care and it shows, you’ll have a much harder time finding work, which makes you less likely to secure the income or insurance that might prevent you from losing more teeth and your children from losing theirs.

There are other ways in which Rich Hill offers useful insight. Like the struggling families depicted here, most poor people in the U.S. are or have been married — contrary to the simplistic rhetoric of many, marriage is not a magical ceremony with anti-poverty powers. There are also higher rates of unintended pregnancies among poor women.  But that’s not because they’re irresponsible, but because they are poor — contraception is expensive and may require a doctor’s supervision, two large obstacles.

Most of the adults in the film work, and those who don’t are typically looking for work, disabled, or caring for children or grandchildren (who may themselves be sick or disabled). But even working and working hard won’t get you out of poverty if your wages are low — and in 2011, one-quarter of all male workers and one-third of all female workers were employed in poverty-wage jobs.

Finally, U.S. prisons are filled with poor people, just as they are in the film, and women are the fastest growing segment (although at twice the rate for black women as for whites). Mass incarceration is a consequence of poverty and also a cause of it: Having an incarcerated parent makes children poorer, and increases the likelihood that they will have their own early encounters with the criminal justice system; that reduces their chance of completing high school, which increases the likelihood that they will be poor and incarcerated as an adult, which makes them more likely to remain poor, given the difficulty ex-offenders have getting hired. Our criminal justice system is a massive engine for making people poor, sick, and angry, and if there is any such thing as a “cycle of poverty,” it’s built and maintained by public policy.

Those who appear to have abandoned hope — and that’s many of those in Rich Hill — will be blamed for their poverty by many viewers. But as insecurity rises and mobility continues to decline, more and more families might find something here to relate to.





Fighting Poverty and Reducing Jail… in Real Time

Many of us who work in the criminal justice system have come to understand the profound connection between poverty and mass incarceration.  Put simply, individuals with criminal histories – even minor ones – find it exceedingly difficult to enter the workforce and provide for their families.  One pragmatic response to this problem is to incarcerate fewer people, particularly in local jails.

While much of the public debate and academic discourse focuses on the challenges of reducing federal and state prison enrollments, mass incarceration is a problem with a significant local dimension too.  As of June 30, 2013, an estimated 731,208 persons in the U.S. were confined in local jails; a much larger total of 11.7 million persons were imprisoned in local jails at some point over the preceding year.  More than 6 out of 10 of those jailed in the U.S. have yet to be convicted of any crime.  Indeed, many of those held in pretrial detention are actually eligible for release yet they cannot afford to post bail – often nominal amounts of money.  And contrary to popular thinking, the overwhelming majority of criminal prosecutions concern relatively minor offenses.  In New York City, three out of four cases that make it to criminal court are misdemeanors – a total of more than 235,000 cases in 2012.

Any time spent behind bars is harmful to individuals, families, and communities.  In many cases, the use of jail makes society less safe: studies have consistently found that incarceration does not deter re-offending, with some research indicating that it actually increases the odds of recidivism.  Further, while most people tend to be released after relatively short sentences, the consequences of incarceration are lasting and damaging.  The fact is we could divert a significant percentage of the American jail population without appreciably increasing risk to public safety.  Alternatives to detention and incarceration will improve the life trajectories of people living in poverty.

We could divert a significant percentage of the American jail population without appreciably increasing risk to public safety.

Brooklyn Justice Initiatives (BJI) in New York City, for example, seeks to forge a new set of responses to misdemeanor offending.  This effort is a unique collaboration—one involving the New York State Court System, the Mayor’s Office, Kings County District Attorney’s Office, Brooklyn Defenders, Legal Aid Society, NYC’s Criminal Justice Agency, the Center for Court Innovation, and the Probitas Foundation.

BJI looks to reduce the use of jail by providing judges with responsible and cost-effective community-based alternatives.  Staffed by a team of court-based social workers, case managers, and court liaisons that works in collaboration with defense counsel, prosecutors, and judges, BJI serves as an alternative to jail for two distinct populations: people with pending misdemeanor cases who face the possibility of bail they cannot afford; and people who have pled guilty to misdemeanor offenses.  For the first group, BJI offers a pre-trial supervised release program, working to ensure that defendants appear in court through close supervision and also connecting them to voluntary social services, such as job training, educational assistance, drug treatment, mental health counseling, and other needed interventions.  For the people who have pled guilty, BJI offers social and community service alternatives to jail, as well as specialized trauma-informed programming for individuals arrested for prostitution and related charges.  (Trauma-informed intervention is critical to assisting defendants arrested on these charges; they are almost invariably victims, struggling to cope with the enduring horrors of childhood sexual abuse, assault, and exploitation.)

Since its inception one year ago, BJI has diverted 557 individuals from jail, including 21-year-old Rick.  He was arrested and arraigned on a charge of criminal mischief for allegedly damaging a neighbor’s property, a misdemeanor carrying a sentence of up to a year in jail.  Although Rick had a clean criminal record, the prosecutor requested $2,500 bail because he had two other pending criminal cases, including a non-violent felony charge.  Bail had already been set on one of his previous cases—his mother had barely managed to pay it and there was no way they could afford this bail too.  Based on Rick’s verifiable community contacts and his willingness to comply with the conditions of supervision, the judge released him at arraignment to BJI. Rick then readily availed himself of voluntary educational services: he was able to earn a high school equivalency diploma and enroll in a college preparatory course.  Throughout his time in the supervised release program, Rick never missed a required phone call or an in-person meeting with his case manager, and he made it to every court appearance.  After two months, Rick’s criminal case was dismissed and sealed.

Megan, age 17, was charged with assault in the third degree after a physical altercation with a peer, also a misdemeanor.  The prosecutor contacted the victim, who had some personal history with Megan and was open to her receiving an alternative sentence.  The case was adjourned and Megan was ordered to meet with a BJI social worker for a clinical assessment.  Megan described a long history of sexual trauma, ongoing academic difficulties, and many recent struggles as a new mother of a baby boy.  She was also eager to identify personal goals, including graduating from high school, securing employment, and strengthening parenting skills.  On the next court date, the social worker recommended a combination of counseling services, job readiness training, and consultation with an educational liaison.  All parties agreed to a conditional plea of guilty to the charge, with a dismissal of the case upon completion of services.  Although she needed a lot of support and occasional crisis intervention from her social worker, Megan completed all the court-mandated services and her case was ultimately dismissed and sealed.  Megan’s criminal record remained clean, and she went on to pursue her academic and professional goals unconstrained by the collateral consequences of a criminal conviction.

Without BJI, Rick and Meagan probably would have spent considerable time at Rikers Island, New York City’s jail.  A recent report from the Independent Budget Office documents that the City’s annual cost per inmate at Rikers is $168,000 – a significant expenditure at a time of rising public needs and increasing public concern about the overuse of incarceration.  While the institutional costs of incarceration are enormous, the human toll is even greater.  And for people struggling with limited financial resources, time in jail means time away from school, work, family, and other social supports, exacerbating an already formidable constellation of challenges to economic mobility.

Brooklyn Justice Initiatives is still in its infancy.  But in a relatively short period of time, it has already shown that jail diversion is a practical and powerful step toward real system change and turning lives around.   The bottom line: anyone who cares about fighting poverty needs to pay close attention to mass incarceration (and vice versa); and anyone who cares about ending mass incarceration needs to look closely at local jail diversion as a just step in the right direction.




The Economic Opportunity Act, 50 Years Later: We Need Renewed Presidential Leadership

When President Lyndon Johnson signed his “war on poverty” legislation 50 years ago on August 20, 1964, America had a different view of itself, of poverty, even a different political lexicon.  The differences are especially vivid to those of us who have spent much of the intervening half century working to stem the tide of increased hunger and poverty, but never again with a level of presidential support commensurate to LBJ’s, nor with the same optimism and confidence of the American public.

At least since President Ronald Reagan quipped that “we fought a war on poverty and poverty won” it’s been politically incorrect for politicians of either political party to go near the issue, even with 22% of America’s children now living below the poverty line.

To appreciate how different things are, just look at LBJ’s barnstorming across the country in the spring and summer of 1964 to rally support for his Economic Opportunity Act.

Less than 6 months after President John Kennedy’s assassination, Johnson, in a lunchtime speech to the League of Women Voters in Pittsburgh put the power of the presidency on the line, saying: “We have declared unconditional war on poverty. Our objective is total victory.”

Politically, Johnson was seeking to shore up his support among JFK’s liberal supporters who were suspect of his worthiness.  But it was personal too. He’d grown up the son of a tenant farmer in a family of seven and remembered the sting of neighbors bringing needed food to his hill country home.

Those years before Vietnam, Watergate, the assassinations of Bobby Kennedy and Martin Luther King, and race riots, were still a time when anything seemed possible. America had pulled through the Great Depression, triumphed in World War II, stared down the Soviets over missiles in Cuba, and created a secure and growing middle class.  Sargent Shriver, Johnson’s choice to run the War on Poverty, remembered: “When a War on Poverty was launched, in terms just like the war against Hitler, we were accustomed to thinking in terms of the United States being able to do big things. America bestrode the world like a Colossus.”

Back then the middle class was so secure it didn’t need to be called out, shored up, pandered to, or put on a pedestal.


What Johnson didn’t say is telling in and of itself.  In speeches around the country throughout the spring and summer the president never uttered the words “middle class”. Today the “middle class” is a non-negotiable touchstone for all political rhetoric; but back then it was so secure it didn’t need to be called out, shored up, pandered to, or put on a pedestal.

Less than a year after Johnson began making the case for the Economic Opportunity Act he signed it into law.  The legislation created Head Start, Job Corps, and Community Action Agencies, along with an expansion of social security benefits, the establishment of food stamps, and Title I legislation to subsidize low-income schools. Though not perfect, these initiatives lifted millions of Americans out of poverty and they still do.

Congressional majorities and unity following JFK’s assassination gave Johnson the luxury of political breathing room.  But in just a few years that breathing room began to shrink. Presidents Nixon, Ford, and Carter would confront Watergate’s abuse of power and the constraints of inflation, gasoline shortages, the Iranian hostage crisis and diminished confidence in government. After Johnson, there would be good intentions and nods in the direction of ending poverty, but no risk of political capital.

The fight against poverty did not end, but for many people the battleground shifted. Social entrepreneurs took up the mantle and a new generation of activists found an outlet in innovative nonprofit organizations like the Harlem Children’s Zone, Teach For America, Communities in Schools, and KaBoom—all of which focus on aspects of economic inequality.  Some, like Share Our Strength’s No Kid Hungry campaign, seek to leverage the best of the Johnson era programs, ensuring access and participation in things that have proven effective, like the school breakfast program and SNAP.  But such private efforts can only go so far.

At the Rose Garden bill signing ceremony Johnson said, “We will reach into all the pockets of poverty and help our people find their footing for a long climb toward a better way of life.”  That climb has turned out to be steeper than LBJ or anyone else might have imagined.  Though the War on Poverty significantly reduced the poverty rate in America, there are still 46 million of us—more than 15 percent—who live below the poverty line.

To complete the journey, we await renewed presidential leadership.