Reclaim Democracy!

Jail Is a Death Sentence for a Growing Number of Americans

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By Shaila Dewan
First published November 22, 2022 in the NY Times

Matthew Shelton was contending with diabetes and periodic substance abuse when he moved in with his sister outside Houston in order to get his life together.

Three months later, facing an old criminal charge of driving while intoxicated, he turned himself in to the Harris County Jail one day in March with a supply of the insulin he relied on to stay alive.

After two days, he told his family that no one was allowing him access to the insulin: He was trying to manage his illness by discarding the bread from the sandwiches he was served. He was alone, frightened and cold, he said.

His mother, frantic, tried repeatedly to phone the jail but could not reach anyone. “We sent money for him to buy socks and ChapStick, and he never bought them,” she said.

Three days later, Mr. Shelton, 28, was found dead in his cell, after having slipped into a diabetic coma.

He was one of 24 people who have died this year in the jail, located in Houston, a far higher death rate than what is reflected in the most recent statistics for jails around the country.

Houston, whose jail has reached its highest population count in over a decade, is far from the only city where jails have become more fatal. Deaths have spiked in cities across the country, including New York, Oklahoma City, Seattle, Pittsburgh and Louisville, Ky. California, Texas and Georgia have also recorded statewide increases in deaths. Covid-19 accounts for only part of the rising toll — suicides and fatal overdoses have also increased in some places.

Jail officials blame a host of factors, including crowding, staff shortages, mental health issues exacerbated by the pandemic and the repurposing of beds in solitary confinement, once available to isolate violent detainees, that now must be used for quarantining the ill.

But jails have also in many cases violated minimum safety standards or failed to provide adequate medical and mental health care for their inmates, about two-thirds of whom are awaiting trial and presumed innocent.

The Houston facility was cited by the state in September for holding new arrestees in its crowded Joint Processing Center for as long as 99 hours before moving them to a permanent cell. The limit is 48 hours.

In Los Angeles, a federal judge granted an emergency order in September after the American Civil Liberties Union provided evidence that people with mental illness were being chained to furniture for days or left to sleep on concrete floors without access to toilets.

In Louisville, a woman killed herself in jail after being held for 18 hours in an attorney interview booth with no mattress, toilet or running water.

Much of the recent attention on jails has been focused on Rikers Island in New York, which is under threat of a federal takeover after suicides and frequent reports of uncontrolled violence.

But there are indications of a much wider crisis whose dimensions are not yet fully understood. The Justice Department has failed to fulfill a 2013 congressional mandate to conduct a comprehensive count of all deaths in custody, at one point acknowledging that its new system had recorded only 39 percent of deaths in local jails.

The most recent national figures available, from 2019, show that jail deaths were rising even before the pandemic. From 2000 to 2019, jail deaths per capita increased by 11 percent, to 167 per 100,000. In 2019, suicide was the leading cause of death. The number of drug- and alcohol-related deaths was the highest ever recorded.

The nation’s jails have little broad oversight but instead are local facilities, most commonly controlled by elected sheriffs. They held about 650,000 people last year, according to Jacob Kang-Brown of the Vera Institute for Justice, a group promoting prison reform. The jail population declined substantially at the beginning of the Covid-19 pandemic but has since begun to rebound, he said.

In Houston, there was another death Tuesday morning, when a 45-year-old man succumbed to injuries sustained in an assault by other jail inmates. That followed the death of a 27-year-old man who was found hanging in his cell last week. Two of the other deaths this year were suicides, including a man who was moved to a padded cell after a suicide attempt, then rammed his head repeatedly against the walls, the door and a metal grate, causing fatal injuries.

Jason Spencer, the chief of staff for Sheriff Ed Gonzalez, whose department runs the jail, said that the death rate, currently at more than 200 per 100,000 inmates, can vary widely from year to year.

At least a dozen of those who died this year were in their 20s, 30s or 40s. More than half had a history of mental illness or had been declared incompetent, according to Sarah V. Wood, the general counsel for the public defender’s office.

While an autopsy attributed Mr. Shelton’s death to a natural cause, diabetic ketoacidosis, his family insists that it was entirely preventable, a result of the jail’s failure to provide him with insulin.

“This is something that didn’t need to happen,” his mother, Marianna Thomson, said. “This is just carelessness. They didn’t care.”Marianna Thomson holding a locket containing the ashes of her late son, Matthew Shelton.Credit…Brandon Thibodeaux for The New York Times

Mr. Spencer said the death occurred not long after the county’s public health care provider, Harris Health, took over the responsibility of providing medical care at the jail and referred questions there.

Bryan McLeod, a spokesman for Harris Health, declined to comment because Mr. Shelton’s family plans to sue. He also declined to discuss whether the jail’s medical providers were adequately staffed.

The deaths this year in Houston come amid a host of complaints about dangerous conditions in the jail. In a lawsuit, several dozen detention officers describe staffing shortages so severe that drug use and assaults were rampant, nurses were unable to administer medicine and officers, often denied meals and bathroom breaks, sometimes urinated into plastic bags.

“The jail is in disastrous shape right now,” said David Batton, the legal counsel for the union that represents jail employees. He faulted the county for failing to adequately fund jail operations. The lawsuit was dismissed last week.

Mr. Spencer said the county had approved a staffing increase of 100 detention officers, but that more than 100 positions remained unfilled. He said the problem was much larger than Houston; the jail’s death rate, he said, was in line with that of the state’s other large jails.

Many jails have seen overcrowding in part because of court backlogs stemming from the pandemic, which slowed or halted hearings and trials. But Houston’s backlog dates back to Hurricane Harvey in 2017, when the courthouse was damaged. The local courts now have more than 41,000 pending felony cases.

Even if no new cases came in, it would take more than a year to clear the old ones, according to a 2020 analysis by the Justice Management Institute, a research and training group. The institute recommended dismissing all nonviolent felony cases more than nine months old, pointing out that most of the accused would not have been sentenced to time behind bars.

But Kim Ogg, the Harris County district attorney, has declined to dismiss cases in bulk, saying that each should be considered individually. “We can’t neglect our prosecutorial duty, and we’re not going to tell victims that their crime doesn’t count,” said Dane Schiller, a spokesman for Ms. Ogg.

Advocates for better jail conditions also blame the overcrowding on a pandemic-era executive order from Gov. Greg Abbott, which later became state law, aimed at blocking the release of detainees on cashless bail.

The law, S.B. 6, prevents the release of any inmate with a previous conviction for violence or threatening violence, no matter how old, without requiring them to pay some bail money.

It has worked against a parallel effort to funnel people with serious mental illness into treatment instead of jail, without requiring them to pay for release, said Krish Gundu, co-founder and executive director of the Texas Jail Project, a watchdog group. She said that S.B. 6 undermines the Sandra Bland Act, named for a woman who could not afford the $500 needed to post bond after a traffic stop and hanged herself in a Texas jail.Twenty inmates have died this year in Harris County Jail in Houston.Credit…Brandon Thibodeaux for The New York Times

Because many acts associated with mental illness, such as spitting on a police officer, are categorized as violent, hundreds of poor defendants who need treatment must now remain in jail while they are on the long waiting list for a community psychiatric bed, Ms. Gundu said.

In Harris County, four out of five detainees have a mental health indicator such as a diagnosis of major mental illness or previous treatment with psychiatric drugs, according to the jail’s dashboard, putting an intense strain on the system.

One woman who had no prior convictions was arrested in January 2020 on charges of possessing less than a gram of meth, almost certainly not enough to earn a prison sentence.

The woman was repeatedly referred to the jail’s mental health unit when guards witnessed her doing things like walking naked, drinking out of toilets and assaulting or being assaulted by others. But each time, she was swiftly returned to the general population. She spent more than two years moving in and out of jail, diversion programs and mental health treatment.

At some point, jail officials became aware that she was pregnant. In May, she gave birth in her cell without medical assistance. How that happened is unclear: Mr. Spencer said she had been checked on once every hour, as required.

When the newborn was discovered, baby and mother were taken to the hospital, where the mother remained under the supervision of two jail guards. A judge at that time declared her incompetent to stand trial and “suffering severe and abnormal mental health, emotional or physical distress.”

Despite her condition, she was permitted at the hospital to interact with her infant daughter and is now charged with stomping, kicking and striking her, though the baby survived.

Advocates for better jail conditions said the jail had failed to treat her severe mental illness, failed to adequately monitor her pregnancy and failed to protect the baby.

The woman’s lawyer, Staci Biggar, did not respond to requests for comment.

This year’s death toll comes on the heels of several notorious cases last year. In one, Jaquaree Simmons, 23, was beaten to death by guards who then failed to document their use of force, according to a subsequent investigation. The jail fired 10 guards, and the case will soon be presented to a grand jury.Fred Harris after his high school graduation in Stafford, Texas, in 2020.Credit…Mr. Harris in the hospital after being beaten and stabbed in Harris County Jail, which ultimately led to his death in 2021.Credit…

In another, Fred Harris, a 19-year-old, cognitively disabled inmate who weighed only 98 pounds, was placed in a holding tank with a 240-pound detainee who was known to be violent and was required to have an escort when outside his cell, according to a lawsuit filed by Mr. Harris’s family. Mr. Harris was stabbed and beaten to death, and his cellmate has been charged with murder.

Asked if the jail bore any responsibility, Mr. Spencer said, “That’s hard to say. I mean, those kinds of things, you know, sadly, have always happened in jails and prisons.”

But Mr. Harris’s mother, Dallas Garcia, said jail officials had failed to provide basic protections for her son. “I don’t want anyone else to experience that,” she said. “I don’t want there to be a lack of human decency in these places.”

 ⓒ 2022 New York Times

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Can a Deadly Storm Again Spark Progress for Justice?

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Hurricane Ida Exposes the Urgency of Equitable Infrastructure

By Jeff Milchen
September 8, 2021

“If you have already evacuated, do not return,” declared Louisiana Governor John Bel Edwards on Tuesday, instructing residents who fled coastal communities before Hurricane Ida’s landfall. Edwards’ advice seemed healthy for an area enveloped by flooding, a heat/humidity index exceeding 100 degrees, and no electricity to help stay cool or sustain fresh food.

Yet many evacuees felt compelled to return home, even under dangerous and uncomfortable conditions. The states absorbing Ida’s first U.S. impact and storm surge: Louisiana, Alabama, and Mississippi are among the poorest, ranking 3rd, 4th and 5th in percentage of residents receiving Supplemental Nutrition Assistance Programs (SNAP) benefits. 

About 73% of SNAP recipients in these states reside with children and 36% are with family members who are elderly or have disabilities, making any homeless span especially difficult even without economic stresses. Governor Edwards offered no guidance on how those folks might pay for scarce lodging, transportation, and feed themselves away from their kitchens with an average SNAP benefit of $1.40 per meal. (Benefits will rise nationally in 2022 under new rules helping recipients meet current standards for a healthy diet.)

These factors clearly contributed to needless deaths during Hurricane Katrina in 2005. When researchers examined why many Black residents did not evacuate New Orleans before that storm, they found lack of resources and fear of discrimination away from home were two of the top four reasons.

The New England and Mid-Atlantic states hammered by Ida on her northward journey are wealthier, but regardless of location, low-income residents are most likely to lose their homes or lives. Less wealthy individuals are more likely to live in low-lying areas, rent or own less sturdy structures, and have inadequate neighborhood infrastructure that can become lethal in severe weather events.

Among those who died in Ida’s Northeast impact zone, many drowned in basement apartments in the Queens borough of New York City, as rapid water pressure build-up thwarted their attempts to escape through doors or windows. It could have been far worse, since thousands of low-income residents, including many new immigrants, crowd into basement dwellings subdivided for rent by Queens homeowners. Many units feature hazards like improvised electrical wiring and windowless bedrooms.

As in New York, our heating climate and accompanying severe weather disproportionately injure people of color. Structural racism often underlies economic vulnerability, while direct racism compounds problems in crises. Nearly paralleling state poverty rates, Mississippi, Louisiana and Alabama rank 1st, 2nd and 5th in Black residents as a percentage of population. Seemingly reinforcing memories of police denying passage to people fleeing Katrina, reports emerged of Black visitors being refused entrance to nearby communities. 

South of New Orleans, LaFourche Parish Sheriff’s Department helpfully offered pre-filled sandbags to residents of the overwhelmingly white community, courtesy of free labor by people in jail awaiting trial, posting of bail, or release. Detainees remained in jail after public evacuation orders, despite the barbaric consequences of this practice during Katrina (and more than 3,000 detained people being killed by COVID).

While we don’t know the real-time population of the LaFourche jail, Louisiana leads the nation in jailing its citizens and, like many states, Black people are vastly over-represented in detention. Such injustice fuels the growing number of organizations working to radically reduce instances of cash bail.

Lefourche Parish Sheriff's Office now-deleted post
This Twitter post from the LaFourche Parish Sheriff’s Office in Louisiana was deleted after online commenters pointed out coercing involuntary labor is a federal felony.

Despite some repetition of injustices observed during Katrina and public outrage and activism sparked by that tragedy, we should celebrate progress and use those successes to drive more. At the forefront, many of the most vulnerable neighborhoods in and around New Orleans survived Hurricane Ida’s wallop, thanks to a post-Katrina investment of $14.5 billion in flood-prevention infrastructure. Such projects exemplify the public investment needed in the pending federal infrastructure bill.

Yet many levees outside the spotlight of New Orleans were left unimproved and failed to protect communities from Ida’s flooding. When an Army Corps of Engineers cost-benefit analysis deemed the Indigenous community of Ile de Jean Charles would not be included in a regional new levee-building project, it rendered destruction inevitable. As a UCLA Law Review article noted, “This was essentially a decision to flood out Isle de Jean Charles in its entirety in order to mitigate flood damages in the regions protected by the levee. The areas immediately outside of the protected zone will be inundated by the flood waters diverted from the protected area.”

Of course, rising seas invariably will require hard decisions that sacrifice some homes and communities, but we should err on the side of protecting the most vulnerable people first — even if that means using funds to help them relocate, rather than to fortify. 

Returning to the success of work to secure New Orleans, could the forest fires, hurricanes, and other climate-related disasters of 2021 catalyze efforts as Katrina did? Might we finally jolt policy-makers into real action to slow global warming, protect vulnerable people, and prioritize environmental health? It’s an open question, but one we have power to influence. As debate rages on the infrastructure bill in Congress, let’s recognize people of color are those most often harmed by failing or absent infrastructure and ensure whatever legislation emerges makes increasing equity a priority.

Most Americans recall how Katrina exposed injustice and vulnerabilities in the Gulf region, but experiential learning is far more powerful than observing through media. While other hurricanes have struck the Northeast, this storm brought unprecedented rain and damage to the New York City metro — our most populous region. More people now viscerally understand climate change is not just a problem for others, but a threat to themselves. It’s a “teachable moment” we should seize to turn awareness into action and public policy to advance justice in many forms. 

Jeff Milchen (JMilchen on Twitter) founded Reclaim Democracy! and serves as a volunteer. 

A Leap Forward for Democracy Is Within Our Grasp

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But Our Chance to Preempt Voter Suppression Could Expire at Any Moment

Editor’s note: for more recent reporting on pending federal voter protection bills, see this update.

March 17, 2021

When the U.S. House of Representatives passed the For the People Act (H.R. 1 in the House, S. 1 in the Senate) on March 3, all but one Democrat voted in favor. Every Republican vote opposed it. 

Passing the voter protections of the For the People Act is the only path for democracy advocates to halt many of the 250-plus voter suppression bills stacked up in state capitols around the country. Republican vote suppressors have an easier task: they need only delay passage of S. 1 while more of those state bills become law — putting the onus on voting rights defenders to overturn laws in court, even if S. 1 passes. 

Each passing day also brings another chance for Senate control to flip back to Republicans. Many Democratic elders hail from states where, in the event of their death, a Republican governor would select their replacement or the seat would remain vacant until a special election is held. Such an event would almost certainly flip Senate control to Republicans by at least a 50-49 margin and doom strong voter protection. Democrats don’t have the luxury of moving methodically.

The urgency also comes from the potency of the For the People Act. If passed, S. 1 would be the greatest forward leap for democracy in generations. While voting rights are central to the bill, it also would secure election processes and take vital steps to neutralize the power of big money to determine our choices and control politicians. This includes a 6 to 1 match for small donor candidate contributions, giving candidates a huge incentive to increase time spent engaging normal people, rather than courting megadonors. 

Regarding the 2010 Citizens United v FEC ruling, the For the People Act says, “The Supreme Court’s misinterpretation of the Constitution to empower monied interests at the expense of the American people in elections has seriously eroded over 100 years of congressional action to promote fairness and protect elections from the toxic influence of money.” S. 1 backs up the words with tough controls over corporate electioneering. Corporate executives would be barred from using shareholders’ money for political spending without first demonstrating shareholder support — a step few corporations would attempt.

Filling hundreds of pages, the For the People Act is vast, largely due to its thoroughness. The Brennan Center for Justice created an excellent guide to the Act for those who want to dive deep. To help understand what the Act would do, we summarized the provisions and placed them in 3 groupings.

Preventing Disenfranchisement & Making Voting Easier
  • Establish two weeks of in-person early voting, including Sundays and during non-business hours;
  • Require states to create nonpartisan redistricting commissions (for US Congressional districts) and quantifiable criteria for district drawing (addresses district gerrymandering);
  • Ends prison gerrymandering by counting people as residents of where they last lived for apportioning representation, not where they’re incarcerated;
  • Make it a crime to mislead voters with the intention of preventing them from voting;
  • Allow 16 and 17-year olds to pre-register so they’ll be on voter rolls when they turn 18;
Increasing Election Integrity
Reducing the Power of Money Over Candidates & Elections
  • Improve campaign finance disclosure rules;
  • Ban corporations from spending on campaigns unless they have a process to determine the political will of shareholders;
  • Require presidential candidates to disclose their tax returns;
  • Provide public financing for House campaigns by matching small donations at a 6:1 rate, so your $10 donation yields $70 for the candidate. This measure would incentivize candidates to seek out small donations from every constituent, rather than focusing on the wealthy. It also would lead to a more diverse candidate pool since access to wealthy donors would no longer be a prerequisite. The program would not use tax revenue — it will be funded by a surcharge on criminal and civil penalties paid by corporations to the federal government.

What the Act Leaves Undone
The For the People Act does not fully eliminate the need to pass the John Lewis Voting Rights Advancement Act and fix earlier damage to the Voting Rights Act by the U.S. Supreme Court. The Washington, D.C. Admission Act (HR. 51) is needed to grant full political rights to citizens in our capital and The Vote at Home Act advances vote-by-mail protections. Enacting the For the People Act also will not eliminate the need to drive an affirmative right to vote into our Constitution. Finally, the bill passed by the House needs cleanup to purge overly prescriptive language re election administration (e.g. micromanaging local election officials).

But the For the People Act would transform U.S. elections for the better. It will improve security, transparency, voter access, and protect citizens from the barrage of voter suppression bills encompassing more than 45 distinct tactics across 43 state legislatures.

To be clear, there are some unnecessary, inappropriate and potentially unconstitutional provisions in HR. 1, as passed by the House. Making Election Day a holiday would undermine the importance of opening a two week window to spread out voting and diminish the opportunity to disrupt voters. And the service workers most challenged for time to vote don’t get a day off just because it’s a holiday. The bill also contains measures unrelated to voting (e.g. new ethics rules for the U.S. Supreme Court) that, regardless of merit, should be expunged to remove easy lines of attack from opponents. Election law expert Rick Hasen wrote (Wa. Post account required) the best good-faith critique of HR. 1 we’ve seen. Jessica Huseman critiques the timeline for demands thrust upon election administrators in the bill (as passed by the House) and the Brennan Center published a thorough response to these critiques.

While expanding democracy should be a non-partisan cause, Republican Senators also have signaled their opposition. So passage of S. 1 will depend on the 48 Democratic and two Independent Senators valuing our voting rights enough to reform (or eliminate) the filibuster and force a vote on the merits of the bill. Democracy advocates received a boost on March 16 when President Biden announced his support for filibuster reform after months of proclaiming Republicans were capable of good faith negotiation.

Failing to pass the For the People Act will enable a wave of state-level voter suppression laws that could lock Republicans into control of (at least) the House of Representatives and many state legislatures for years to come. Let’s contact our Senators’ offices to urge reforming the filibuster and demand that S. 1  receive a hearing and vote. Along with direct communication to Senators, sending a letter to the editor of your local paper and calling in to talk radio shows are key ways to influence your Senators.

By Reclaim Democracy! staff. Research by Brittany Trushel.

Thanks to Stephen Wolf’s Voting Rights Roundup newsletter from Daily Kos for helping follow and understand state and federal voting rights bills. To fully grasp the scope of voter suppression tactics in play, see 50 Ways to Disenfranchise and Suppress Voters.

Pass For the People Act., HR1

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The Shrouded Weapon of Patriotic Correctness

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August 22, 2020

Displaying his signature blend of victimhood and vitriol in a recent speech, President Trump accused political protesters of pushing a “cancel culture — driving people from their jobs, shaming dissenters, and demanding total submission from anyone who disagrees.” 

Put aside the hypocrisy of those words coming from a man who’s called for dozens of people to be fired for expressing opinions he dislikes. The more serious issue is the popular claim that “political correctness” presents a great threat to our freedom. In truth, its counterpart — patriotic correctness — suppresses dissent more widely and imposes greater consequences. 

Take the story of country music stars The Dixie Chicks. The three women band leaders never faced notable criticism of their Confederacy-friendly name. Yet the band downsized their name to The Chicks for their just-released album, Gaslighter, simply announcing, “we want to meet this moment.” 

Photo from Wikimedia Commons

Contrast that to 2003, when the band stepped out of line with country music political orthodoxy.

Days before the invasion of Iraq, vocalist Natalie Maines told a London audience, “We do not want this war, this violence, and we’re ashamed that the President [G.W. Bush] is from Texas.”

The backlash was immediate and savage as thousands of country music radio stations forbid DJs from playing The Chicks, slashing their record sales. Some groups staged events destroying recordings by The Chicks and band members received numerous death threats. 

The Chicks nearly vanished for years, but several multi-platinum albums granted them the wealth and power to resume their career years later. Their comeback single, “Not Ready to Make Nice,” defiantly rebuffed would-be suppressors. But less powerful country artists confirm the fear of getting “Dixie Chicked” influences everything from their lyrics to political engagement. That fear is just starting to ease nearly two decades later.

Performers identified as right-wing, like country star Toby Keith, may deter some invitations to perform with their stances, but face no such organized intimidation. Keith, However, took to projecting photos photos of Natalie Maines next to Saddam Hussein at his concerts (of course, they had never been in the same place) in an attempt to whip up hatred against her.

Patriotically correct doctrines include: American exceptionalism is unquestionable, even though we trail other wealthy nations in many key measures. Our military spending is untouchable. Service members should receive preferential treatment without regard to personal merit. And patriotism should be expressed with chest thumping and flag waving, not dissent that aims to illuminate and correct our biggest flaws.

The NFL is among the institutions enforcing those rules. When President Trump attacked Colin Kaepernick for this kneeling protest against police killings of Black people, the NFL didn’t merely fail to defend an employee, it effectively halted his career. Silencing one of the league’s most visible stars made it unnecessary to tell any athletes just trying to make a team to “shut up and play.” Message received.

And what is the playing of our national anthem at sporting events other than institutionalized patriotic correctness? In almost every other country, national anthems — sensibly — are played only for international sporting events.

Patriotic correctness is so omnipresent we rarely notice it and, like racial biases, practice it unconsciously. In an interview, liberal icon Justice Ruth Bader Ginsburg gave the patriotism police a gift by calling Kaepernick’s protest “dumb and disrespectful.” (Ginsburg later apologized after reflecting on her act.)

Meanwhile, right-wing grifters like Milo Yiannopoulos play the victim when they lose lucrative speaking gigs for business reasons, failing to fulfill contractual promises, or when college students organize to stop their fees from being transferred to such self-promoting provocateurs.

As Alex Nowrasteh of the libertarian Cato Institute says, “every group has implicit rules against certain opinions, actions and language as well as enforcement mechanisms — and the patriotically correct are no exception. [But] they are near-uniformly unaware of how they are hewing to a code of speech and conduct similar to the PC lefties they claim to oppose.”

To be clear, political correctness can do harm to the free exchange of ideas, and too many Americans are ready to judge others for a careless utterance, but the patriotic correctness unleashed on The Chicks is both more pervasive and severe than any progressive pressure.

The Chicks blacklisting yielded only a setback — one they had the power to overcome by virtue of their previous success, but their persecution silenced many more vulnerable people. 

The most powerful suppression of speech is accomplished through implied threat and voluntary compliance, not punishment.

Jeff Milchen (@JMilchen) founded Reclaim Democracy! and the American Independent Business Alliance.

President Reagan’s View on Immigration

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From his final speech as President. The entire transcript from the Presidential Medal of Freedom award ceremony is posted at the Reagan Library.

January 19, 1989: Now, tomorrow is a special day for me. I’m going to receive my gold watch. And since this is the last speech that I will give as President, I think it’s fitting to leave one final thought, an observation about a country which I love. It was stated best in a letter I received not long ago. A man wrote me and said: “You can go to live in France, but you cannot become a Frenchman. You can go to live in Germany or Turkey or Japan, but you cannot become a German, a Turk, or a Japanese. But anyone, from any corner of the Earth, can come to live in America and become an American.”

Ronald Reagan quote graphic

Yes, the torch of Lady Liberty symbolizes our freedom and represents our heritage, the compact with our parents, our grandparents, and our ancestors. It is that lady who gives us our great and special place in the world. For it’s the great life force of each generation of new Americans that guarantees that America’s triumph shall continue unsurpassed into the next century and beyond. Other countries may seek to compete with us; but in one vital area, as a beacon of freedom and opportunity that draws the people of the world, no country on Earth comes close.

This, I believe, is one of the most important sources of America’s greatness. We lead the world because, unique among nations, we draw our people — our strength — from every country and every corner of the world. And by doing so we continuously renew and enrich our nation. While other countries cling to the stale past, here in America we breathe life into dreams. We create the future, and the world follows us into tomorrow. Thanks to each wave of new arrivals to this land of opportunity, we’re a nation forever young, forever bursting with energy and new ideas, and always on the cutting edge, always leading the world to the next frontier. This quality is vital to our future as a nation. If we ever closed the door to new Americans, our leadership in the world would soon be lost.

A number of years ago, an American student traveling in Europe took an East German ship across the Baltic Sea. One of the ship’s crewmembers from East Germany, a man in his sixties, struck up a conversation with the American student. After a while the student asked the man how he had learned such good English. And the man explained that he had once lived in America. He said that for over a year he had worked as a farmer in Oklahoma and California, that he had planted tomatoes and picked ripe melons. It was, the man said, the happiest time of his life. Well, the student, who had seen the awful conditions behind the Iron Curtain, blurted out the question, “Well, why did you ever leave?” “I had to,” he said, “the war ended.” The man had been in America as a German prisoner of war.

Now, I don’t tell this story to make the case for former POW’s. Instead, I tell this story just to remind you of the magical, intoxicating power of America. We may sometimes forget it, but others do not. Even a man from a country at war with the United States, while held here as a prisoner, could fall in love with us. Those who become American citizens love this country even more. And that’s why the Statue of Liberty lifts her lamp to welcome them to the golden door.

It is bold men and women, yearning for freedom and opportunity, who leave their homelands and come to a new country to start their lives over. They believe in the American dream. And over and over, they make it come true for themselves, for their children, and for others. They give more than they receive. They labor and succeed. And often they are entrepreneurs. But their greatest contribution is more than economic, because they understand in a special way how glorious it is to be an American. They renew our pride and gratitude in the United States of America, the greatest, freest nation in the world — the last, best hope of man on Earth.

The Arbitration Gambit: The Corporate Takeover of Our Justice System

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It used to be anybody who forged a banking transaction would end up in deep legal trouble. Not anymore – at least if you’re a banker. You might get fired as four senior Wells Fargo managers were recently. But the police won’t be looking for you.

What’s worse, if you are a victim of the fraud, there maybe little you can do about it, because the corporations have come up with a new legal “get out jail free card”  they can use to insulate themselves from responsibility for a wide variety of crimes in almost any line of business.

The fired Wells Fargo executives were implicated in a scheme in which the bank created up to two million phony accounts in the names of its customers without their knowledge. The company then charged the legitimate accounts of those customers for fees created by the fake ones. This went on for about a decade until it was exposed last year.

Although the bank paid a federal fine, no one at Wells is being prosecuted. The CEO, John Stumpf, retired with  $124 million in stock and other benefits — on top of his generous salary.

The bank did fire 5300 workers who created fake accounts under intense pressure to meet sales goals not achievable through ethical sales practices. Yet the supervising executive in charge of the branches, Carrie Tolstedt, retired at the end of last year after being paid $27 million dollars over the last three years (not including stok bonuses). 

So what about the customers who were defrauded? Although the amount each of them lost was relatively small, usually about $25, many of them are understandably outraged and have sued the bank. Ordinarily, no one could afford to take on a large corporation for a $25 fraud claim. Instead the lawyers for the bank’s victims used a “class action lawsuit” in which they can represent large numbers of clients in a single case.

But buried in the agreement customers signed when they opened their accounts was a phrase stipulating all disputes with the bank would be settled through binding arbitration, in which the parties argue before a supposedly independent arbitrator who makes the decision. The arbitrator’s ruling typically cannot be appealed to a public court.

© Mike Luckovich, Atlanta Journal-Constitution

In practice, arbitration favors the corporation contracting the arbitration firms, since those companies depend on repeat business from their corporate clients. However, the arbitration rules don’t offer any protection from these potential conflict of interests.

The problem for the victims of Wells Fargo’s fraud isn’t just that they are unlikely to get a fair shake in arbitration. They won’t get a hearing at all because almost all of these agreements prohibit any kind of class action. Instead each individual has to bring his or her case on their own. This would mean spending thousands of dollars and huge amounts of time to seek restitution for a $25 theft. And if the arbitrator rules against them, they may be liable for a big bill from their lawyer and the arbitrator.

These binding arbitration agreements have spread like a plague since a pair of Supreme Court decisions in 2011 and 2013. They affect just about any business one does with a large corporation including Amazon, Netflix, Travelocity, eBay and DirecTV, AT&T and countless others.

According to a multipart series on arbitration in the New York Times, the legalization of the binding arbitration gambit was the goal of a “Wall Street-led coalition of credit card companies and retailers.” In 2011 the Court handed down the first of the two crucial decisions, AT&T LLC v. Concepcion, that made get out of jail free a reality. By that time one of the lawyers who worked with the coalition, John G. Roberts Jr. was the Court’s Chief Justice.

The Roberts Court overturned a California state court decision declaring AT&T’s arbitration agreement an “unconscionable contract” because it exempted  the “party with superior bargaining power” from “responsibility for [its] own fraud.” In doing so, the California court’s decision was in keeping with a centuries-old legal tradition concerning unfair contracts.

But the Supreme Court twisted the meaning of a 1925 federal law that simply established the legal standing of arbitration agreements except as long as they don’t violate the legal standards applicable to contracts in general. Instead, the Court decided the law placed the goal of “efficient, streamlined procedures” to solve disputes ahead of any concerns about fraud.

The lower courts responded by throwing out hundreds of class action suits and the number of cases brought by consumers and small businesses dropped precipitously. Then in a 2013 decision, American Express Company v. Italian Colors Restaurant, the court denied a claim by a restaurant owner that an arbitration clause the company inserted into its credit card contract violated antitrust laws. The dissenters on the court made it clear what this decision  meant: “The monopolists gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse.”

Forced arbitration is also a threat to individual victims of corporate crimes who are not part of class action suits. According to the Times, arbitration has impeded legal redress for people dealing with private schools and colleges, doctors, home construction firms, cemeteries and nursing homes.

Binding arbitration is also becoming common in employment contracts. The Times described the experience of a doctor who sued the medical group that employed her for workplace discrimination. When she showed the company had destroyed evidence, the arbitrator fined the company $1,000 and then billed the doctor $2,000 for the time he spent looking into it. When the arbitrator decided in favor of the employer, the doctor was stuck with a $200,000 legal bill, including $58,000 she owed the arbitrator.

Wells Fargo recently agreed to a $110 million settlement with customers victimized by the phony account scheme. It did so despite having successfully played its get out of jail card in court because its management decided to counter the bad publicity. As the bank’s new CEO Tim Sloan explained, the settlement is “another step in our journey to make things right with customers and rebuild trust.”

With forced arbitration, individual citizens as well as small and medium-sized business are being rendered legally powerless against the hostile corporate takeover of a large part of our civil justice system. But there is a silver lining in all of this. The Supreme Court’s rulings rest on the slender reed of a single law. The federal government could nullify those rulings by enacting a new law making it clear the Federal Arbitration Act does not support “unconscionable” contracts.

Getting such changes passed will not be an easy task in the current political environment. On the other hand, the arbitration gambit also creates an opening for a counter move. This issue affects almost everybody who is not extremely wealthy regardless of their race, religion, class or political belief. They can demand that their representatives fix this law. Regardless of whether or not the fix is enacted,  a broad cross section of citizens will find out who in Washington is working on their behalf and who isn’t.

Jeffrey Kaplan writes from the San Francisco Bay Area