Need a Lawyer? Sell Everything

In 1963, the Supreme Court declared that states are obligated to provide a lawyer to anyone accused of a crime who cannot afford one. In Gideon v. Wainwright, the Court made clear that a lawyer is essential to ensure justice is served and liberty is protected—that laypeople cannot possibly safeguard their own liberty in a complex system of law and procedure without a lawyer.

Yet, more than 50 years later, some jurisdictions deprive low-income people of the right to counsel simply because they own property or hold a job.

Imagine you are accused of a crime. Your government devotes vast resources to take you from your family and lock you away. You know you need a lawyer in order to prove your innocence. The judge demands that you sell your house to pay for one.  Few scenarios are less consistent with our nation’s ideals.

Welcome to criminal justice in much of America today, where too often the test of whether a person can or cannot afford a lawyer is so extreme that even the most indigent of defendants may be deemed unworthy of counsel. I was reminded of this as I watched a news story out of Orlando, Florida, entitled Taxpayer Money Wasted on Undeserving Defendants.  The title made me wonder who the reporter understood as undeserving of the essential right to counsel.

The story showed three examples of people who were allegedly “defrauding” the system by requesting lawyers.  Evidence that the first man could afford a lawyer was the fact that he owned a home.  Another man presumably exemplified the term “undeserving” because he owned a car.  The third example was an unemployed man who requested a public defender.

The ability to get justice in this country has become a luxury reserved for the rich. This is not Gideon's Promise.

A judge, held up in the story as a model jurist, interrogated the third man for daring to ask for a lawyer.  The man explained that he mowed lawns “off the books” on occasion to earn money.  That was all the judge needed.  She accused him in open court of trying to bilk the taxpaying audience of their money and denied him counsel.  The message is not subtle: anyone who owns something of value, or has any income, is undeserving of a lawyer funded by the state.

Perhaps the most troubling aspect of the story is that the call to deprive counsel to these people who were just making ends meet was led by “several local attorneys.”  Despite all of the taxpayer dollars used to mindlessly police, prosecute, and incarcerate poor people, these lawyers were most concerned that people hovering just above the poverty line might obtain court-appointed lawyers.  Far too many lawyers prey on people who—in their effort to prove their innocence—are forced to mortgage their homes, or borrow money they cannot afford to pay back.  Far too often these lawyers do little to deliver on their promise to provide quality representation.  One has to wonder if the real incentive of these “whistleblowers” in Orlando is that they hope to be able to squeeze these defendants once their request for a public defender is denied.

The story reminded me of countless anecdotes I have heard from public defenders across the country about judges who deny court appointed counsel because a defendant has a decent watch, jewelry, or nice clothes.  It also reminded me of a recent news story out of Waco, Texas where the county assigned a sheriff’s detective to investigate poor defendants who request counsel.  The detective visits their homes and tells them that if he determines they have been misleading in their application they could face a felony charge of tampering with government property.  (The detective also said he tells people they are required to talk to him according to the application they signed, even though the application includes no such agreement.)  Predictably, the threat causes many people to withdraw their application.  Certainly, even many honest people prefer to avoid the increased scrutiny of the law.  This is particularly true among populations that already have a distrustful relationship with law enforcement.  Lauding the cost-savings of such intimidation, the county’s indigent defense coordinator called it “helpful” and said that in a single week “several people just said, ‘I don’t want to deal with this, I don’t want to have to be bothered by the detectives — just throw my application away.’”

Clarence Earl Gideon was the Florida man behind the Supreme Court case that guarantee a lawyer to every person accused of a crime who cannot afford one.  Although he is frequently used as the symbol of the right to counsel, Gideon—who survived by doing odd jobs—ironically would likely be deemed undeserving in Orlando if he were accused today.

Most working people in this country live paycheck to paycheck.  Once wrongly accused, a good lawyer costs thousands of dollars.  It is a necessity most people simply cannot afford.  The ability to get justice in this country has become a luxury reserved for the rich. This is not Gideon’s Promise.



How Low Child Care Wages Put All Children at Risk

Many parents who have faced the daunting task of finding quality, affordable child care have a list of things they look for when they visit a prospective program. Perhaps that list includes an inviting classroom full of books and educational materials. Maybe a playground and a warm and nurturing teacher. But how many parents look at the wages of their child care provider? And how many question whether their child care provider is living in poverty?

A new study entitled Worth Work, STILL Unlivable Wages finds that wages in the child care industry as so low that many providers live in poverty.  The mean hourly wage of a child care worker in 2013 was $10.33 an hour or $21,490 annually. This puts child care workers in the Bureau of Labor Statistics’ lowest income tier along with parking lot attendants and dry-cleaners, meaning that most child care workers live in poverty.

The combination of low wages and the rising cost of living means that many child care workers aren’t paid enough to meet their families’ most basic needs.  In fact, more than 46 percent of child care workers are in families using one of the four major social support programs—almost double the rate of use in the U.S. workforce overall. Poverty wages for child care workers is a problem in and of itself, but the impact extends well beyond workers. The 12 million children who attend child care are affected as well.

Our most vulnerable children are often facing stress from multiple sources.

Child care workers who endure the stressors of living in poverty are more likely to experience toxic stress, depression, and chronic health issues. As the number of children spending time in child care settings has increased so too has our knowledge of the link between adult caregiving and early childhood brain development. Study after study has shown the connection between better-paid staff and higher quality care. The instability and stress experienced by caregivers dealing with economic insecurity or poverty shapes their ability to provide enriching and nurturing environments for children. Often, it can result in a decreased ability to provide supportive spaces for children to develop and learn.

Importantly, high quality care is often most powerful in the lives of low-income children and children of color who already enter school behind their wealthy and/or white peers. But we also know that low-income children are more likely to be in low quality child care settings. Research shows that children who attend low quality child care settings—with high turnover or high numbers of stressed out staff—are less competent in language and social development. This means our most vulnerable children are often facing stress from multiple sources.

Ultimately, we must do something to better empower the 2 million women earning a living in this sector. Changing the course is far from impossible. Decades ago, the Department of Defense made major changes to its internal child care system, including paying child care workers on par with other employees with similar education and qualifications. This reform increased pay by about 76 percent over the past 25 years. As a result, they see far less turnover and consistently receive higher quality ratings.

It’s time that we pay those caring for our children a fair wage. And that starts with parents asking the question: how much does my child care provider make? Does caring for my family force her family to live in poverty?




Never Convicted, but Held Back by a Criminal Record

Tyrae T. and N.R. needed what any thirtysomething American without regular income needs: a well-paying job.  They were both ready and eager for work, yet both were turned down for numerous entry-level positions they were qualified for.  The reason?  Criminal records.  Tyrae and N.R. have never been convicted of any crimes, but they face a problem that afflicts millions of low-income Americans: arrests without conviction that are improperly used as grounds to deny employment.

Job applicants with criminal records, especially men of color, face a high hurdle to employment.  Studies have shown that black men without criminal records get callbacks for job interviews at rates below those of white men with criminal records; and for a black man with a record, the callback rate is almost negligible.

Arrests that never led to conviction shouldn’t affect employment—innocent until proven guilty is a fundamental principle of American justice, after all.  Because there is a presumption that arrests without convictions don’t hinder employment opportunities, this issue has received far less media and political attention than the employment obstacles created by past convictions.  But the fact is that when it comes to getting jobs, a mere arrest can be just as bad as a conviction for millions of people like Tyrae and N.R.

When it comes to getting jobs, a mere arrest can be just as bad as a conviction.

Many companies conduct pre-employment background checks using FBI rap sheets, which are notoriously hard to read: employers often can’t discern whether the charges resulted in conviction, were withdrawn, or dismissed.

State-level databases can be equally confusing.  In Pennsylvania, if an item turns up when an employer runs a background check through the state police, the system immediately responds with a generic code, indicating that details will follow within four weeks.  If someone only has arrests on his record, the report eventually comes up clean, but many employers won’t wait that long for the clarification—they simply move on to the next job applicant.

Other employers use unofficial court records, often available online for free.  In Tyrae’s case, two arrests—one seven years ago, the other fifteen—were visible to employers with just a few mouse clicks, and the mere existence of the arrest reports cost him multiple job opportunities.  As for N.R., the companies interested in hiring her didn’t give any weight to her recent bachelor’s degree—once they learned she was arrested on a misdemeanor four years ago, they stopped calling back.

Courts will sometimes order the expungement of arrests from criminal records, but even that doesn’t always solve the problem.  Private consumer reporting agencies—which sell background reports to employers—often maintain databases that include outdated court records; so arrests which were expunged are sometimes still reported to employers.

The Equal Employment Opportunity Commission notes that excluding applicants based on arrests-only has a disparate impact on black and Hispanic workers, and thus constitutes employment discrimination.  Therefore, under federal law, “an arrest record standing alone may not be used to deny an employment opportunity.”  In Pennsylvania, state law also says that employers may only consider convictions if they are relevant to an applicant’s suitability for a given job.  However, as Tyrae, N.R., and thousands of other people have discovered, these laws are widely and routinely violated.

The good news is that advocates can employ a number of strategies to lessen the burden of arrest records.  In many states, legal services attorneys can petition the courts to expunge or seal arrests.  In Philadelphia, Community Legal Services (CLS) did just that for N.R. and Tyrae, so their records are now completely clear.  When black and Hispanic workers are rejected as job candidates due to arrests, advocates can help them file discrimination charges with the EEOC or state and local fair employment practices agencies.  People denied jobs due to arrests may also be eligible to collect back pay, and offending companies can be forced to change their policies.  Finally, when consumer reporting agencies tell employers of arrest records that the courts had ordered expunged, workers who are denied jobs can sue the reporting agency, and also demand a correction of the background report.  CLS has successfully brought cases for our clients in all of these areas.

States should now adopt fair chance hiring laws that include reforms like “Ban the Box”—which precludes employers from inquiring about criminal records on job applications—and implement other important protections such as not considering non-conviction arrest records.

But perhaps the single most effective legislative change would be to expand opportunities for the expungement and the sealing of records.  Advocates can push their states for automatic expungement whenever possible—such as when charges are dropped after an arrested individual completes a pre-trial diversion program—and for a clear legal right to petition for expungement of all other non-conviction data.

A clean slate is the best pathway to employment and equal opportunity.



Golden Rules: How California is Leading the Way Toward Ending Mass Incarceration

On issues of crime and punishment, California voters are demanding a rewrite.

After a four-decade incarceration binge, the state is taking steps to reduce prison populations, which have come at ruinous costs for state coffers and for the disproportionately black and Latino individuals and families who are affected.

The latest step came last month, as California voters approved a ballot measure to reclassify a number of low level offenses from felonies to misdemeanors.  Under Prop 47, offenses such as shoplifting, writing hot checks, and drug possession would be punished less harshly.  This would potentially allow 10,000 individuals currently imprisoned to petition to have their sentences reduced and to return to their families sooner.

In recent years, California has served as an intriguing case study for reducing prison populations without harming public safety.  After the state was ordered by the U.S. Supreme Court in 2011 to address its prison overcrowding crisis, lawmakers responded with a policy of “realignment,” which shifted supervision of non-violent offenders and parole violators to local communities.  In 2012, California voters approved a ballot proposal to ensure that the state’s notorious Three Strikes Law would not send people to prison for life for non-serious offenses.

The effect of these and other changes has been dramatic.  Between 2006 and 2012, California’s prison population decreased by nearly a quarter and while doing so, its drop in violent crime exceeded the national average.  These developments, along with similar developments in New York and New Jersey, show increased support among both policymakers and the public for a public safety strategy that is less reliant on incarceration.

But the largely untold story of criminal justice reform in California is what could happen with the savings.

Under Prop 47—of the hundreds of millions of dollars of projected state prison savings each year—a significant portion will be allocated to preventing crime from happening in the first place.  This will include investments in mental health and substance abuse treatment, programs to reduce school truancy and prevent dropouts, and support for victim services.

The question we should be asking is whether incarceration is the most effective way to ensure safe and healthy communities.

Research—as well as common sense—suggest that such interventions can be more effective in reducing crime than incarceration.  But that is not the way our nation has been operating.

Like other states, California has for decades used the criminal justice system to respond to social problems.  Following the failure of other institutions to provide opportunity and education—and yes, to deal with behavioral problems—police, prosecutors, and prisons have taken on roles that used to be left to schools, parents, social workers, and others in local communities.

This is particularly true with the war on drugs, which is a primary driver of mass incarceration and racial disparities.  Today, about 75 percent of incarcerated individuals have a history of substance abuse.  One of every six has a history of mental illness.  Many were abused.   About two-thirds of individuals imprisoned on a drug charge are black or Latino, even though people of all races use and sell drugs at roughly the same rates.

Though we have initiatives aimed at early childhood education, therapeutic interventions for at-risk youth, and treatment for substance abuse and mental illness, they are painfully underfunded compared to the scope of the problem.  Instead of investing in such interventions, we have turned to the criminal justice system, which is an extremely expensive way to address these problems.  Few would dispute that incarceration is sometimes necessary, but the question we should be asking is whether incarceration is the most effective way to ensure safe and healthy communities.

In a definitive report earlier this year, the National Research Council concluded that the rise of mass imprisonment in the United States has “transformed not only the criminal justice system, but also U.S. race relations and the institutional landscape of urban poverty.”

To truly address America’s mass incarceration epidemic, we will need to divert people to substance abuse and mental health treatments rather than sending them to prisons and jails.  We’ll need to remove barriers that keep people with criminal records from starting a new life.  And above all, we’ll need to shift resources away from prisons and invest them in communities.

Prop 47 is only a start, but it may mark a new day for criminal justice reform.


First Person

Ronald’s Story: ‘People Need Second Chances’

I was arrested in 2004.  I was on the streets with my brother. He was selling drugs, and when the cops came up I said, “Here comes 5-0.” So, they charged me with drugs and possession. And that year I also tried to steal an expensive pocketbook at Neiman Marcus.

Two misdemeanors.  I did no jail time, and my probation was terminated early.  I’ve had no incidents at all since then.

A lot of people think of me simply as an ex-offender, but I refuse to let that define me. Ronald Lewis is a father, a son, a friend, and a very ambitious person who is righting my wrongs. It’s been so long since I made those mistakes and second chances are very important—for me and millions of other Americans.

I have a building engineer license, and I am presently in school so I can start my own company and give second chances by teaching the trade that I went to school for.  It was hard for me to get work even after I trained for my trade.  So many doors have been shut in my face I know what wood tastes like.

The first time was gut-wrenching. I worked at a job for maybe a month, then they called me to the office—Human Resources. And they said, “You are no longer able to work here because of your criminal background.” I told them I was the same person they fell in love with at the interview—until that paperwork from the background check came back. Once the paperwork came back, it was like—“Security get this guy out of the building fast.”

People really do want second chances, but they come home with no hope.

It’s so embarrassing. It’s hard. You finally start to see you’re turning the corner and you’re getting a sense of purpose. Your life is starting to mount and your family is going to be proud of you. But then you have to tell them, “I failed again,” or you just feel like a failure.  It was the worst feeling of my life. The worst.

Since then, there have been numerous times when the background check stopped me from getting a job.  The employer says, “You’ll be great. Your skill level is exactly what we are looking for.” But then there’s that question. It’s like the elephant in the room—I hate that question: “Do you have anything on your background?” And when you tell them, they’re gone.

So we need to shed light on this now—the way things are—and the fact that people need second chances. A lot of people that I run across in school now—there are a lot of people who are ex-offenders in my class.  So on the first day, everybody walked around with a bravado—nobody is talking to anybody else. It’s almost like the jail house mentality. So, the second day of class I stood up and said, “Listen, jail is not going to define us.   Obviously you want a second chance or you wouldn’t have come to school.”

At first they thought I don’t get it.  Because I don’t walk around like jail is a badge of honor. It’s shameful. My mother was shamed, my family name was shamed.  But then when I talk to the other students, we sit down and we have a conversation, and I let them know some of the things that I’ve been through—then they are like, “Okay, I understand. He made it; I can make it.”

My class now has the highest average in school—a 90 average.  And I think my leadership and being able to relate to some of the other students has played a role in that.  And it starts with knowing that people really do want second chances, but they come home with no hope. There’s no hope. So then you resort to what you resort to in order to feed your family. You understand? It’s bad. My community is sad.  And it’s all about hope.

You want to know Ronald Lewis?  Don’t focus on some piece of paper that says I made mistakes ten years ago. Look at all of the positive things I’m putting right in front of you right now.