Analysis

What Happens When Asylum Seekers Are Too Poor to Make Bail

On April 6, the American Civil Liberties Union (ACLU) filed a class action lawsuit against the federal government for detaining immigrants who remain in jail simply because they are too poor to pay their bond.

One of the plaintiffs in the case, Cesar Matias, is a gay Honduran seeking protection in the United States. Since 2012, he’s been detained at the Santa Ana City Jail because he is unable to afford the $3,000 bond a judge set for his release. Xochitl Hernandez, the other plaintiff, is being held at a for-profit detention facility so notoriously dangerous that 29 members of Congress submitted a letter to the Department of Homeland Security requesting that women not be detained there. Hernandez, a mother of five U.S. citizen children (and grandmother of another four citizens), faces the prospect of remaining in detention for years until her case is resolved because her bond was set at $60,000.

Both plaintiffs were found eligible for release, which means that they pose no danger to their communities. Any chance of flight risk would be mitigated by conditions placed on their release. Yet they remain in immigration detention facilities that have dismal human rights records simply because they can’t afford to pay up.

They remain in immigration detention facilities that have dismal human rights records simply because they can’t afford to pay up.

Unfortunately, the cases of Matias and Hernandez aren’t isolated incidents. The U.S. immigration detention system holds some 34,000 people daily who are awaiting decisions in their immigration cases. Many of them are detained because they are unable to make bond. The ACLU estimates that there are at least 100 immigrants detained in Los Angeles alone just because they cannot afford to pay bond. At the Santa Ana City Jail, where Matias is being held, only three of 651 detained immigrants were bonded out in 2015. I’ve received reports from attorneys working across the country—including in New Jersey, Texas, and Arizona—about LGBT people detained due to bonds as high as $100,000.

Detention not only subjects immigrants to terrible conditions—conditions that are particularly dangerous for LGBT individuals—it can also carry devastating long-term consequences. The New York Immigrant Representation study found that detained immigrants who are represented by counsel have only an 18 percent chance of a successful case outcome, compared to a 74 percent success rate for immigrants who are represented but have not been detained.

The Department of Justice (DOJ) has criticized cash bonds in the criminal justice system that result in the incarceration of people solely because they can’t pay.  Congressman Ted Lieu also introduced legislation to end money bail. Yet immigration officials do not consider an immigrant’s ability to pay when setting a cash bond either, and in contrast to the criminal justice system in which an individual typically must post 10 percent of the bond in order to be released, immigration detainees must pay the entire bond.

As attorney Michael Tan of the ACLU told me, “Ironically, at a time when the Department of Justice has argued that it’s unconstitutional to lock up criminal defendants simply because they’re poor, its officials are engaged in the same practice in the immigration system. But it’s just as irrational—and unlawful—to lock up immigrants solely because they can’t afford to make bail.”

According to an Immigration and Customs Enforcement (ICE) spokesperson, bond amounts are determined by an individual’s flight risk. ICE reviews each case and takes a variety of factors into account to determine the level of flight risk—including immigration history, criminal history, and community ties.

Hernandez was considered enough of a risk to warrant a $60,000 bond determination, despite living in the U.S. for the past 25 years and having children and grandchildren who are citizens. According to the ACLU’s complaint, the additional factor taken into account appears to be her criminal history, which consists of a decade-old shoplifting conviction for which she was sentenced to one day in jail. As for Matias, the complaint doesn’t specify a determination of his flight risk; it simply states that the judge believed the $3,000 bond set was “pretty generous.”  The judge who reviewed that determination two years later agreed the amount was “reasonable,” despite Matias’ continued inability to afford it.

While ICE has broad discretion in determining which factors to weigh in setting conditions for release, there is a statutory bond minimum of $1,500. Moreover, officials are not required to consider whether alternative conditions of supervised release—such as periodic reporting requirements or ankle bracelets—can be utilized alone or in combination with lower bond amounts to ensure that individuals appear in court. These alternatives to detention cost an average of $10.55 per day, compared to an average daily cost of $158 to detain a person. In cases where bond is used, the very least ICE and DOJ should do is consider the ability of an individual to pay it.

The government has now spent $153,300 to keep Matias in detention.  Until the DOJ and ICE make smart and humane reforms, these costs will continue to mount, and people like Cesar Matias and Xochitl Hernandez will languish in cells, solely because they are too poor to make bail.

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Explainer

Why Conservatives’ Plans for Pregnancy 401(k)s Fall Short

Eighty-seven percent of workers lack paid family leave, including the vast majority of low-income workers. Fortunately, some conservatives have offered a bold new solution: pregnancy IRAs.

That’s right. In an apparent attempt to cement the United States’ status as the last industrialized nation on Earth without paid family leave, the Independent Women’s Forum proposed a system of Personal Care Accounts (PCAs) in which workers would save for their own paid leave based on the same 401(k) model that has left millions at risk of an insecure retirement.

The proposal would, of course, place the burden on individuals to save for their time off during the lowest-earning years of their lives. As Jeffrey Hayes from the Institute for Women’s Policy Research explains, the fact that women have kids early in their life means that there is very little time for parents’ savings to compound—limiting the main benefit of tax-free savings accounts as well as the savings of most people who aren’t already in the privileged position of being able to take time off.

And, there are other reasons why this proposal pales in comparison to existing plans to guarantee paid family leave.

“Personal Care Accounts” would leave out many young parents

The PCA is modeled after tax-exempt savings accounts such as Health Savings Accounts (HSAs) and 401(k)s. These savings vehicles are supposed to make it easier to accumulate wealth by allowing workers to defer paying taxes on contributions from themselves and their employer. Unfortunately, over two-thirds of 401(k) tax benefits go to the top 20 percent of households and most low-income households—the ones most unlikely to have paid leave—do not have access to a retirement account at work.  Notably, the IWF is also opposed to requiring employers to provide retirement benefits, indicating that their commitment to access is about as robust as our current paid leave laws.

The PCA would actually help even fewer people than does the 401(k) since younger workers have less money to save and are in a lower tax bracket, which means they benefit less from deferring taxes than older households. Indeed, the median income of a household headed by individuals between the ages of 25-34 is just $53,000 compared to $84,000 for 45-54 year olds. Given their lower incomes, it is no surprise that young adults have not been able to build very much wealth: the median young household actually has saved $0 for retirement. And so, at a time when half of all households say they could not come up with $400 for a financial emergency without selling assets or borrowing money, it is not credible to claim that young people should save for their paid leave—which they may similarly need unexpectedly—in yet another account.

Further limiting access, in order to use the PCA, a worker would have to have access to unpaid time off at work. However, the Family and Medical Leave Act—the current law that guarantees job-protected, unpaid time off—fails to cover about 40 percent of workers.

The likely use of PCAs? Increasing the limit on tax-free savings for the rich.

Low- and moderate-income households already pay little in federal taxes because of their low incomes: the bottom three quintiles of families with children pay an average of just $3,700 per year in individual and payroll taxes combined. So they don’t have much to gain from tax-free savings.

But, there is one group that does indeed stand to benefit from the use of PCAs: the rich. A saver in the top tax bracket would avoid paying about 40 cents in federal income taxes for every dollar they contribute—a huge subsidy from the government. PCAs would simply increase the number of accounts that well-off Americans can use to reduce their tax burden—after maxing out their 401(k), IRA, and health savings account, they would be able to stow away another $5,000 tax-free per year. The IWF did cap PCAs at $30,000—roughly two years of working full-time at the federal minimum wage—to limit the amount of sheltered income. But that means the plan will allow wealthy individuals to accumulate an additional $30,000 in tax-sheltered savings—or $60,000 per couple—resulting in less revenue for government services that would benefit the very low-income people left out in the cold under this policy proposal.

IWF itself doesn’t think PCAs will do the job

Strikingly, IWF itself implicitly admits that its proposal of tax-deferred saving would not be enough for working women by saying that wealthy individuals and corporations could fund PCAs out of charity. The report says:

“Additionally, non-profits could be established by generous individuals as well as larger corporations as part of their social corporate responsibility efforts to help set up and fund PCAs for lower income workers, in order to help provide leave benefits for those facing the biggest financial challenges. Many generous individuals and foundations are interested in helping people during times of childbirth or illness and would support such a cause.”

In other words, IWF is counting on a magical change in corporate and philanthropic behavior to pay for parental leave. Take retirement as an example. Although middle-class workers are facing a retirement crisis, there is no sign that corporations have decided to fill empty 401(k)s with their social responsibility funds. Surely, nothing will stop these same generous individuals and larger corporations from stepping up to fund paid leave for lower-income workers today.

To be sure, making it easier for Americans to save for the future is very important.  But when it comes to providing paid leave, there are much better solutions than hoping that individuals save enough during the lowest-earning years of their lives to cover their time off. Policies put forward by progressive members of Congress would substantially increase access to paid family and medical leave, instead of just giving yet another tax break to those who can already afford to save. It’s well past time to ensure that all Americans, no matter where they live—or how much they’re able to save—are able to take time off to care for their families.

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Analysis

When Bad Financial Advice Pushes Seniors into Poverty

When you meet with a financial adviser, the advice you get may not be what’s best for you—it may be what’s best for them and their bottom line.

Fortunately, earlier this month at the Center for American Progress, the U.S. Department of Labor announced its final fiduciary rule that would require financial professionals who advise on how to invest retirement savings to act in their clients’ best interest. The fiduciary rule is much more than an obscure legal concept—it’s a commonsense action that closes 40-year-old loopholes in retirement security laws that were left open by Congress. It also returns at least $17 billion a year to American families.

Granted, struggling families are not likely to have access to retirement funds and financial advisers, so some may wonder how this helps low-income Americans. The fact is that faulty advice can leave individuals in poverty when they retire, even if they were able to save for retirement during their working years.

For example, Ruby H. of Philadelphia scrimped for 17 years to put aside $5,000 for retirement, and an adviser helped her grow that amount to $17,000. But when her adviser switched firms, he changed her investments into the ones most advantageous to him, and she lost everything. And Phil Ashburn lost the bulk of his savings after he spent 30 years working for utility companies: first Western Electric in 1972, and finally Pacific Bell. Offered a buyout in 2002, he was recommended to a financial adviser who put the value of his savings—about $355,000—in an expensive variable annuity. However, he ended up with only about 20 percent of those savings following the Great Recession. Meanwhile, the adviser received a commission of roughly 7 percent and ended up making $900,000 that year.

More than half of all working-age households are considered inadequately prepared for retirement.

These stories are a painful reminder of why workers face such bleak prospects for retirement. Forty years ago, when the rules on retirement advice were first written, most workers didn’t have to worry about whether they were getting good advice because they weren’t expected to plan for their own retirement. The vast majority of workers with a retirement plan had traditional pensions, which rewarded a lifetime of work with monthly payments for life. There was no need to wade through different investment options and savings strategies. But today, with the erosion of pensions and advent of options that are far less secure, more than half of all working-age households are considered inadequately prepared for retirement, up from 31 percent in 1983.

The rule also reminds us why Social Security is so crucial, particularly in this era of financial uncertainty. Social Security brings the incomes of more than nearly 15 million elderly above the poverty line, cutting senior poverty by three-quarters. And for roughly two-thirds of the elderly, Social Security provides the majority of their retirement income. Future retirees need the assurance that Social Security will be there even if their savings, or their financial adviser, aren’t up to par. Thankfully, as Senator Brian Schatz (D-HI) noted during the Department of Labor’s announcement, cutting Social Security is no longer mainstream: “How much should we cut Social Security is such a preposterous proposition except on K Street, except among pundits.”

But while Social Security is safe for now, this fiduciary rule is under attack by some financial firms and their conservative allies. This disagreement isn’t unexpected. As Senator Elizabeth Warren (D-MA) has pointed out, there are “17 billion reasons” why special interests oppose the rule—that is, the $17 billion returned to the American people. In fact, from the beginning of discussions around the rule, some industry players have called it unworkable, argued that their voices were not heard, or threatened to sue. House Speaker Paul Ryan has also derided the rule, calling it “Obamacare for financial planning” and seeking to undo it. Given that his stated concern for the poor has often been accompanied by policy proposals to make drastic cuts to the safety net, perhaps this is not surprising. But, as the Department of Labor has stepped in to close loopholes of Congress’ own making after decades of improper financial advice, rolling back the fiduciary rule now will only increase retirees’ vulnerability in the coming years.

Some opponents have even gone so far as to claim that the reform will diminish working families’ access to financial advice because some advisers may stop working with less profitable savers if they cannot charge as much. But the fact is that most working families with small amounts of savings are not served by advisers today to begin with, and may have less trust in the advice that’s given in the first place. This same argument about access is a common defense for other predatory products—whether payday loans or for-profit colleges—in which the real question about access is whether companies can keep their access to the vulnerable consumers whom they grift. Meanwhile, new firms are offering independent, nonconflicted advice at a fraction of the cost, proving that it can indeed be done without ripping off current or future retirees.

This rule is a stark reminder for members of Congress to decide which side they are on: that of savers or of special interests. If they stand with Secretary Tom Perez and those who came out in favor of the rule, they have the opportunity to prevent bad financial advice from cheating more families out of their retirement dollars.

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First Person

When Corporate Promises Fall Short, Retail Workers Pay the Price

During my first months working for a major retailer, my manager called to inform me that my next three scheduled shifts would be cancelled due to low sales. At the time, I was 16 years old, dependent on my parents’ income and splitting my paychecks between my savings account and concert tickets. By contrast, erratic work schedules put my coworkers with car payments to make and diapers to buy in an economically precarious situation.

Phone calls like the one I received from my manager were far from atypical in my job. In addition to last-minute cancellations, my coworkers and I would wait until Friday evenings to receive our weekly schedules—which would begin less than two days later, on Sunday mornings. Even when we received notice of our schedules later than Friday evenings, we still had to be on time if we were scheduled for the 6 a.m. markdown shift on Sunday. We might also discover that we would be working just 12 hours in a week, even though the previous week we had worked for 20.  Last August, a few months before I left, the company publicly announced that it would provide all employees their schedules 14 days in advance by early 2016. But my former coworkers tell me that they still receive their schedules just 48 hours before the workweek starts. The ugly reality is that corporate promises—even widely publicized ones—do not ensure change.

The ugly reality is that corporate promises—even widely publicized ones—do not ensure change.

The scheduling practices that continue to threaten my coworkers’ ability to make ends meet are hardly unique to my former employer. In fact, schedule volatility affects a staggering 90 percent of the retail workforce. And for the 35 percent of these workers who are parents, fluctuating hours seriously impede their best efforts to secure high-quality child care.

The practice of on-call scheduling is particularly disruptive to work-family balance. Someone who is on-call has to sit in schedule purgatory until her manager either clears her to stay home or asks her to come in—which can happen with as little as two hours’ notice. If she can’t scramble to find child care in that time (a difficult task given the scarcity of accessible, affordable care in this country), she may have to take a disciplinary strike for failing to report to work. If she accumulates too many strikes, she can be fired. Informal consequences like reduced hours or inconvenient shifts are not uncommon either. Although some major retailers have announced plans to end on-call scheduling, many still expect their employees to report to work with little notice and at any time of day (or night).

To make matters worse, only a few states and localities protect parents’ ability to request time off to care for their children. As a result, in most places, employees can be fired when family responsibilities make them unavailable to work a shift. In November 2014, some year-round Kmart employees reported that they had to be available to work on Thanksgiving and Black Friday, or else risked termination. Even though child care on a federal holiday is nearly impossible to find, the ultimatum stood: work on Thanksgiving, or lose your job.

The result is that parents with unpredictable work schedules are much more likely to rely on home-based child care providers, relatives, or both. A patchwork of informal care arrangements can deprive children of the educational and developmental benefits associated with high-quality child care. Early childhood education is a springboard for educational attainment, economic mobility, and social well-being for children in low-income families. Yet, schedule instability in low-wage industries constrains parents’ ability to position their children for future success.

Schedule instability in low-wage industries constrains parents’ ability to position their children for future success.

To help low-income parents afford child care, the federal Child Care and Development Fund provides billions of dollars in subsidies—but the program is far from perfect. It’s funded through block grants, meaning that states have the power to impose work requirements for parents who have no control over their hours; states can also make the application process cumbersome through requiring employers to corroborate parents’ schedules and income with additional documents. (It should be noted that none of these requirements exist at the federal level.) Conservative policymakers tout block grants as an ideal way to tailor policies to fit the unique needs of different states, but in reality, they keep high quality child care out of reach for many working parents.

But even when child care is affordable for retail workers, it often is unobtainable in practice. Just 3 percent of center-based child care providers are open on weekends, and even fewer are open after 7 p.m. Meanwhile, only 44 percent of retail workers work regular daytime hours, which leaves the majority of the retail workforce with very limited options for child care. To complicate things further, providers often require advance payment for full-time enrollment, which is often impossible for parents whose hours can fluctuate by 50 percent from week to week.

None of this is inevitable. Policies that recognize and empower working parents are crucial to reining in unchecked schedule volatility in the retail industry and beyond. The Schedules That Work Act, introduced in the Senate last summer, offers much-needed, common sense protections. The bill requires employers to modify schedules based on employees’ child care needs, and prevents employees who use their right to request schedule modifications from adverse outcomes like pay cuts and termination. It guarantees four hours of pay if workers are sent home early, and eliminates unpaid “on-call” shifts. Finally, the bill mandates employers to provide clear and advance notice of work schedules.

Overall, this legislation would make it easier for my former coworkers who are parents to provide their children with the long-term benefits of consistent, high-quality care. Retail workers are expected to take initiative and be proactive problem solvers—not only as workers, but also as parents. It’s only fair that the law require our employers to do the same.

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First Person

Why Art Matters, Even in Poverty

In the toy aisle, which is inconveniently next to the bread aisle, I tell my 5-year-old son we are not getting a truck today. I tell him we buy what we need, and not more. I tell him I have enough money for food, but nothing else. I tell him I don’t buy treats for myself.

“You buy art supplies,” my son says. And I’m stumped.

Because of course he’s right.

I live in Appalachia, in the poorest county in my state. I often make less in a month than some people spend on cable, though my son and I don’t have cable. We don’t always have trash collection. I drive a 15-year-old car with dents in the back and a scrape on the side that will never get fixed, and I’m behind on medical bills.

But I do buy art supplies.

One of my first memories is of drawing. I’m sitting below the table while my parents have dinner; I’m drawing their portraits. Outside, rural Indiana is flat and abandoned. Our road is gravel. Our neighbors have trailers. But in the warmth of the kitchen, I draw and dream.

I don’t remember being specifically encouraged in art as a child, but I was encouraged to be creative. I was encouraged to occupy myself. I was told, when I complained to my mother that I was bored, “Is your imagination broken?”

When I became a mother—and then, a solo mother—I found myself saying the same words to my son. I filled an old suitcase with art supplies, and put the suitcase in the living room. Mostly, I did it to distract him, to gain a few minutes so I could fold laundry, or start dinner.

But something happened: my child came to love art.

A few years ago, I took him to a “First Friday” event, a street fair when the stores—those that are still in business—stay open late, and there are hot dogs and a high school band. Kids were playing in a fountain, but my kid started sobbing. Because he wanted to see paintings. He had heard me mention an art gallery—and he had to see the paintings there.

My son became enamored with paintings after seeing the art I make at night after he’s asleep. Most nights I fall asleep working as a freelance reporter, drifting off over my laptop, but some mornings, it’s paper and paint pens that litter the quilt when he wanders into my room. He holds the images up. He has questions. He has favorites, and constructive criticism.

What is living in poverty if not constantly being creative?

Not long ago, in the midst of making what I thought was a couch fort, he made his own art gallery. He turned the biggest cushion on its side and taped up his creations to the fabric. He’s also done an “installation” in which he taped greeting cards, string, an odd piece of paper from a grocery bag he cut out himself, and small toys to the wall. He did this after seeing me arrange my own postcards on the wall of our rented place, to cover a water stain.

Why is it important to have art even in poverty? Why is it important to make it? Why spend time trying to make things look nice?

My child is observant—he knows we struggle—and is prone to worry. It’s just clothes, I tell him when he has a play date that will end in mud and wet grass. It’s okay if they get dirty. That means you’re having fun.

Fun is okay, I tell myself. It’s okay to be happy. It’s okay not to spend every second working. It’s okay not to spend every second worrying. It’s okay to forget sometimes—briefly—the creditors on the answering machine, the possibility that we might have to move again, my cough that I can’t afford to get checked out.

Why do I bother making things?

One of my jobs as a poor mother is to make things, to stretch the laundry detergent with water, to fit the screws back in the car door with wire. What is living in poverty if not constantly being creative? Continually making it work? Making the unbearable, bearable. Making the money last. Making the unlivable not just livable, but survivable.

So I cover up scuffs in shoes with marker. I use baking soda to wash my face. Every leftover portion from dinner, I carefully wrap and freeze.

Self-sufficiency is a hallmark of Appalachian life, as is DIY ingenuity. Everything is jerry-rigged, slapped or duct-taped together. One Christmas, my friend helped me chop a tiny evergreen, but when I got it home, I realized I had nothing to put it in. So I filled a pot with water, propped the tree in it, and secured it to the pot handles with rubber bands. Appalachian tree stand.

That’s the descriptor for what we do—and it’s a brand of honor. Appalachian tanning bed: a blanket in the sun. Appalachian recycling bin: throw your empties out the window.

There is more to this life than struggle; there is also great love. I learned that when my son was a newborn, and the knocks on the door began: strangers with mason jars of soup and trays of rice and beans. I learned it when my son was a toddler, and a friend’s father gave him a bicycle and spent hours helping me teach him to ride.

Living in Appalachia, being surrounded by people who are the kindest, most generous I have ever met, even though they have the least, has allowed me to find a way when it seemed there was no way. It has made me feel strong and capable at the hardest points of my life. It has also allowed me to give. When I feel like I have nothing, I can give my son the gift of creativity, the gift of imagination, the gift of spending a happy hour painting cardboard on the porch.

Yes, the porch is splintered, and it doesn’t belong to us, and we don’t own the land—we don’t own any land, not yet—but the paint is bright, the colors are true, and my son smiles.

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