2017 Law Journal for Social Justice Symposium

The 2017 Law Journal for Social Justice Symposium, “Criminal Justice System Reform” focused on mandatory minimums, mass incarceration, and issues in policing in two panels moderated by Professor Charles Calleros and former Phoenix Mayor and former Attorney General of Arizona Terry Goddard.  Panelists included Maricopa County Attorney Bill Montgomery, State Senator Martin Quezada, Federal Public Defender Jon Sands, 2016 Pima County Attorney Democratic candidate Joel Feinman, Will Gaona, Maricopa County Deputy Sheriff Ben Henry, Phoenix Police Department Commander Kevin Robinson, and civil rights attorney Steve Benedetto.

Special thanks to our Symposium Editor, Jane Ahern, for her hard work on this wonderful event.

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The Man’s Best Friend

By: John Burnett

Dogs have an incredible sense of smell. In fact, a dog’s nose is so much more sensitive than a human’s that, analogized to vision, “what you and I can see at a third of a mile, a dog could see more than 3,000 miles away and still see as well”[1]. In addition to scientific evidence of canine smelling superiority, there are the countless representations of crime-fighting pooches using their noses to find the drugs and bust the bad guys. Despite this common depiction however, the application of drug-sniffing dogs in American law enforcement is surprisingly flawed and open to error. As science suggests, the flaw is not with the dogs’ ability to detect smells, but rather with training and their law-enforcement handlers. These defects have been made known to courts and yet despite perverse incentives, the practice has gone uncurbed. Even when “no better than a coin flip,”[2] the use of drug-sniffing dogs to establish probable cause sufficient for searches and seizures has been given strong approval by circuit courts and the Supreme Court[3].

While dogs naturally possess amazing olfactory capabilities, they have been bred for generations to serve a higher purpose: make their human happy. As such, dogs have developed the highly perceptive ability to read human body language and respond accordingly. This combination creates the problem that the more a handler wants drugs to be found, the more often a dog is to alert. In one case[4] a police handler’s dog alerted 93% of the time, with a success rate of only 59%, but the dog received a treat every time it alerted no matter the result. This reward system undermined the dog’s training and encouraged it to alert to receive a treat whether there were drugs detected or not. The Supreme Court critiqued this kind of behavior, but ultimately deferred to the handler’s testimony of accuracy in the field[5]. Controlled studies have confirmed these biases as tests designed to fool handlers are far more likely to trigger false alerts than tests designed to fool dogs[6]. Additionally, drug-sniffing dogs tend to be less accurate than their bomb-sniffing counterparts since the latter’s handlers have an incredibly strong incentive to be right[7].

The urge to please a handler can also be seen from instances in which dogs, miraculously, alert on contraband they’re not trained to detect like fake passports[8] or untaxed cigarettes[9]. As the Washington Post pointed out,“[e]ven the smartest of police dogs can’t determine with a sniff whether a trunk-load of Marlboros was purchased in or out-of-state. (Not to mention that the dog wasn’t trained to detect tobacco.) The dog likely was merely reflecting whatever suspicions its handler had about the driver.” The Chicago Tribune found in a local study that when a police dog alerted to the presence of drugs during traffic stops that drugs were discovered just 44% of the time[10]. Additionally, the article found that in stops involving Hispanic drivers, the dogs’ success rate dropped to 27%[11]. Again, the evidence indicates a breakdown in training in which dogs are urged, consciously or not, to alert when their handler finds someone suspicious regardless of guilt.

Despite exhaustive empirical evidence[12] showing the susceptibility of drug-sniffing dogs to become biased and inaccurate by the desires of their handler, courts have generally refused to question the propriety of arrests made based on dog-generated probable cause. So long as the dog is certified, or has received recent training, the Supreme Court has found[13] that wildly inconsistent success rates in the field will not diminish the propriety of a search even if the suspect is found to have illicit materials different than those that the dog is trained to detect.

Unreliable drug-sniffing dog alerts have been upheld by various courts around the country with field success rates of 59.5%[14], 57%[15], and 43%[16] being found sufficient with little ambivalence. The Supreme Court has rejected the idea that field tests should be the “gold standard,[17]” and in fact wrote that a dog’s field record is of “relatively limited import.[18]” Given these rulings, it is difficult to legally impugn the reliance of police officers on “certified” drug-sniffing dogs to detect contraband.

Despite the fact that there are little to no legislative regulations or standards for drug-sniffing certification, the Court wrote in Florida v. Harris that the police’s interest in having useful (that is “accurate”) dogs would prevent sloppy certification. However, as many have pointed out, poorly trained (excessively alerting) dogs “waste” police officer’s time, but provide easy probable cause to search a suspect’s property. The combination of easily obtained probable cause and lax forfeiture laws in some states, provide a clear and contemptible incentive for police to have poorly trained dogs.

When used properly, drug-sniffing dogs can be essential and relatively unobtrusive tools for confirming or clearing someone of suspicion. But when police are given carte blanche, an environment is created in which officers are encouraged to use poorly trained dogs to subject innocent citizens to unreasonable searches based on no more than a hunch. These practices, especially if left unchecked, allow for the kinds of arbitrary searches and seizures that the 4th Amendment is designed to preclude.

[1] Peter Tyson, Dog’s Dazzling Sense of Smell, NOVA scienceNOW (Oct. 12, 2012), http://www.pbs.org/wgbh/nova/nature/dogs-sense-of-smell.html.

[2] Radley Balko, Federal appeals court: Drug dog that’s barely more accurate than a coin flip is good enough, Washington Post (Aug. 4, 2015), https://www.washingtonpost.com/news/the-watch/wp/2015/08/04/federal-appeals-court-drug-dog-thats-barely-more-accurate-than-a-coin-flip-is-good-enough/?utm_term=.c66a9c62d5fa.

[3] Id.

[4] United States v. Bentley, 795 F.3d 630, 636 (7th Cir. 2015).

[5] Radley Balko, Federal appeals court: Drug dog that’s barely more accurate than a coin flip is good enough, Washington Post (Aug. 4, 2015), https://www.washingtonpost.com/news/the-watch/wp/2015/08/04/federal-appeals-court-drug-dog-thats-barely-more-accurate-than-a-coin-flip-is-good-enough/?utm_term=.c66a9c62d5fa.

[6] Id.

[7] Id.

[8] Radley Balko, Supreme Court Considers Two Drug Dog Cases, The Huffington Post (Jan. 23, 2014), http://www.huffingtonpost.com/radley-balko/supreme-court-considers-t_1_b_2063820.html.

[9] Id.

[10] Id.

[11] Id.

 

[12] Id.

[13] Florida v. Harris, 133 S. Ct. 1050, 1056 (2013).

[14] United States v. Bentley, 795 F.3d 630, 636 (7th Cir. 2015).

[15] United States v. Holleman, 743 F.3d 1152, 1157 (8th Cir.).

[16] United States v. Green, 740 F.3d 275, 283 (4th Cir. 2014).

[17] Florida v. Harris, 133 S. Ct. 1050, 1056 (2013).

[18] Id.

CHARTER SCHOOLS AND THE RESURGENCE OF ‘SEPARATE BUT EQUAL’

By Michael Gorelik

“We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”

This year marks the 63rd anniversary of the United States Supreme Court striking down the nation’s “separate but equal” doctrine in the landmark segregation case Brown v. Board of Education. Speaking on behalf of a unanimous Court, Chief Justice Earl Warren held that segregation deprived African-Americans of the Fourteenth Amendment’s guarantee of the equal protection of the law[i]. Brown was monumental because the Court’s decision was not grounded in the actual disparities of white and black public education at the time. Instead, the Court struck down the ‘separate but equal’ doctrine based on the premise that inequality was embedded in the concept of segregation[ii]. Regardless of quality of the facilities, segregation was found to be inherently unequal because the system perpetuated feelings of inferiority for colored children regarding their status in the community[iii].

 

The Brown decision was a breakthrough case for racial justice because thereafter great strides were made to dismantle dual school systems and provide an equal educational opportunity for colored children across the nation. Yet, federal data released by the U.S. Government Accountability Office in 2016 suggests that Brown’s initial influence has dwindled as the number of K-12 public schools in high-poverty areas which are comprised mostly of black or Hispanic students has more than doubled from 7,009 schools in 2000 to 15,089 schools in 2014[iv]. The UCLA Civil Rights Project has also noted that the percentage of black students attending schools with a majority white population in 2011 was the lowest in almost 50 years[v].

 

The problem of increasing racial and socio-economic isolation has been exacerbated by the national expansion of charter schools in the United States of America. Charter schools are publicly funded, privately managed K-12 educational institutions which operate under a legislative contract with the state[vi]. Charter schools operate independently of the public-school system and are therefore exempt from certain state regulations[vii]. For example, charter schools can accept students from across the state because they are not subject to state districting or zoning limitations[viii]. As such, students and parents have the choice to bypass their district public schools and enroll at charter schools.

 

One of the federal government’s key policies for nationwide education reform has been incentivizing state charter school expansion. Charter schools have been favored by the federal government in part because they are portrayed as being academically superior to traditional public schools. As an example, the Obama administration’s Race to the Top program predicated the receipt of federal funding to states on, among other things, charter school expansion[ix].

 

Despite these purported learning gains, federal government policies which promote charter school expansion are inconsistent with Brown’s goal of school integration because the incidental effect of charter schools is to increase segregation amongst public school students.

 

There are two ways in which charter schools have contributed to increasing segregation in both the charter schools students attend and in the traditional public schools which they forego attending.

First, some charter schools attract a higher concentration of minority students than their district public school counterparts. A report by Dr. Erica Frankenburg, associate professor of education at Pennsylvania State University, found that, in fifteen states, 70% of black students in charter schools attended schools which had at least a 90% minority population[x]. In four of those states, 90% of black students attended charter schools that had at least a 90% minority population[xi]. These statistics far surpassed the 36% of black students enrolled in similarly segregated traditional public schools in the same states[xii]. As evidenced by the NAACP’s recent proposed moratorium on charter schools, charter schools with overwhelmingly minority populations have been criticized for increasing segregation as well as robbing traditional schools in the neighborhood from state funding and resources[xiii].

 

Second, the availability of charter schools can lead to “white flight”. In North Carolina, charter schools have become a means by which white parents can withdraw their children from the traditional public school system[xiv]. In 2015, Helen Ladd of Duke University found that, in the last fifteen years, the public schools in North Carolina had become less white, while charter school populations had grown more white[xv]. In a previous study, Ladd discovered that white North Carolina parents preferred schools where the student population was less than 20 percent black[xvi]. The public schools that are left behind by white students in North Carolina for being ‘too black’ subsequently begin to have almost entirely black student populations as white parents move their children to charter schools.

 

However, even where the choice to attend a charter school is based on considerations other than race, the educational model of charter schools generally favors granting access to affluent, white families. The charter school model can increase segregation because the limited services they are mandated to provide exclude certain students from consideration. For example, charter schools are free to choose their location, but are not required in all states to provide transportation or lunch to students like public schools are[xvii]. This increases the cost of attending charter schools for poorer minority students, thereby excluding them from access to the same educational opportunities as affluent, white students. As these affluent, white students transfer to charter schools, the traditional public schools they leave behind become increasingly segregated.

 

Part of the reason that charter schools incidentally promote segregation is that there is little to no government oversight in the charter sector. Last year, a new audit from the Office of the Inspector General found that charter schools pose a risk to federal funds because of the lack of accountability and lack of assurances that the charter schools were implementing federal programs in accordance with federal requirements[xviii]. The minimal government oversight and enforcement of the charter sector allows for charter school policies that contradict Brown and other established federal civil rights doctrine. For example, Minnesota’s charter schools do not have to comply with the state desegregation rule because they are not considered a “school”[xix].

 

Regardless of whether charter schools attract high concentrations of minorities or enable “white flight”, charter schools exacerbate segregation and contravene Brown because of the lack of government oversight. Proponents who highlight the comparable quality of charter and traditional public schools miss the pivotal argument made in Brown. In Brown, Chief Justice Warren stated on behalf of a unanimous court that separate educational facilities were inherently unequal because separating students by race creates feelings of societal inferiority for colored children[xx]. As such, the quality of charter schools could never justify the separation of students by race, whether deliberately or incidentally.

 

The ability to accept students from various districts suggests that charter schools can be catalysts towards an equal educational opportunity for all students as opposed to a racial and socio-economic divider. However, continued federal funding should be conditioned on adherence to greater government oversight and regulation of charter schools to ensure that they are not used as tools for re-segregation. Weighted lottery systems, outreach to minority communities, and free lunch and transportation programs are all examples of diversity initiatives that can be mandated by the federal government to promote continued school integration. In the age of choice in the public school system, respect for the principles of equality and racial justice that Brown cemented into civil rights history requires that the government take a more active role in promoting racial integration in our increasingly diverse country.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[i] Brown v. Board of Ed. of Topeka, Shawnee County, Kan., 347 U.S. 483, 495 (1954)

[ii] Id.

[iii] Id at 494.

[iv] Greg Toppo, GAO study: Segregation worsening in U.S. schools, USATODAY (May 17, 2016), http://www.usatoday.com/story/news/2016/05/17/gao-study-segregation-worsening-us-schools/84508438/

[v] Gary Orfield and Erica Frankenburg, Brown at 60: Great Progress, a Long Retreat and an Uncertain Future, THE CIVIL RIGHTS PROJECT 10 (May 15, 2014), https://www.civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/brown-at-60-great-progress-a-long-retreat-and-an-uncertain-future/Brown-at-60-051814.pdf

[vi] Frequently Asked Questions About Public, Charter Schools, UNCOMMON SCHOOLS, http://www.uncommonschools.org/our-approach/faq-what-is-charter-school

[vii] What is a Charter School?, NATIONAL CHARTER SCHOOL RESOURCE CENTER, https://www.charterschoolcenter.org/what-is-a-charter-school

[viii] Id.

[ix] Valerie Strauss, Obama’s real education legacy: Common Core, testing, charter schools, THE WASHINGTON POST (October 21, 2016), https://www.washingtonpost.com/news/answer-sheet/wp/2016/10/21/obamas-real-education-legacy-common-core-testing-charter-schools/?utm_term=.9624133c24f8

[x] Joe Savrock, Frankenburg Research Shows Segregation in Charter Schools, PENNSYLVANIA STATE COLLEGE OF EDUCATION NEWSLETTER (February 2011), https://ed.psu.edu/news/releases-jan-mar-2011/frankenberg-charter-research

[xi] Id.

[xii] Id.

[xiii] Statement Regarding the NAACP’S Resolution on a Moratorium on Charter Schools, NAACP (October 15, 2016), http://www.naacp.org/latest/statement-regarding-naacps-resolution-moratorium-charter-schools/

[xiv] Jeff Guo, White parents in North Carolina are using charter schools to secede from the education system, THE WASHINGTON POST (April 15, 2015), https://www.washingtonpost.com/blogs/govbeat/wp/2015/04/15/white-parents-in-north-carolina-are-using-charter-schools-to-secede-from-the-education-system/?utm_term=.30accd366f48

[xv] Id.

[xvi] Id.

[xvii] Id.

[xviii] Lauren Camera, OIG Report: Charter Schools Pose Risk to Education Department Goals, U.S. NEWS (October 5, 2016), http://www.usnews.com/news/articles/2016-10-05/oig-report-charter-schools-pose-risk-to-education-department-goals

[xix] Gary Orfield and Erica Frankenburg, Brown at 60: Great Progress, a Long Retreat and an Uncertain Future, THE CIVIL RIGHTS PROJECT 14, footnote 54 (May 15, 2014), https://www.civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/brown-at-60-great-progress-a-long-retreat-and-an-uncertain-future/Brown-at-60-051814.pdf

[xx] Brown v. Board of Ed. of Topeka, Shawnee County, Kan., 347 U.S. 483, 495 (1954)

Native American Mascot Controversy

By: Danielle Ser

Native American tribal leaders, members, and their families have suffered immensely throughout history, facing forced relocation to desolate reservations, desecration of sacred sites, and a mascot controversy where names and symbols are used to offensively represent professional and non-professional sports teams.  Take for example the Washington Redskins, the Florida State Seminoles, or the Cleveland Indians.  The issues raised by this controversy include the plain language of the mascot names and how they promulgate cultural appropriation and negative stereotypes.  However, many of these mascots and team names are embedded in a team’s history and their fan base, resulting in a hotbed of disagreement.

 

Several of the mascots associate Native Americans with violence and war, perpetuating a stereotype that misrepresents Native American culture.  Studies have shown that even though some argue that the mascots honor Native Americans and portray them as courageous and brave, such mascots perpetuate negative stereotypes of native cultures, even on a subconscious level.[1]  Even President Obama expressed his disdain toward such mascots and recommended that a change be made.[2]

 

The issue also exists on a smaller scale in high schools across the nation, and a tribe in Michigan is taking action through a campaign that provides schools with funds to initiate changing mascots.  A deal in Michigan called the “tribal gaming compact” between the state and the Nottawassepi Band of the Potawatomi provides funds from tribal gaming revenue to schools and their mascot-changing efforts.[3]  At the university level, the NCAA implemented a policy against hostile and abusive Native American mascots, nicknames or imagery at its championships,[4] yet hosts of athletic teams still utilize such imagery during sporting events.[5]

 

Another large-scale native initiative against the mascot controversy is “Change the Mascot” which is directed at the Washington Redskins NFL team’s longstanding mascot.  Like the high school campaign in Michigan, the Oneida Indian Nation launched “Change the Mascot” to urge the NFL and its Commissioner to end the use of the mascot’s name and image.[6]  The initiative urges banning the use of a racial slur and epithet to represent a hugely popular professional athletic team by raising awareness of the issue and its effects on the United States’ native population and on a larger, global scale.[7]  They promote native pride and call citizens and organizations to take a stand to help perpetuate positive change.

 

Recently, Redskins mascot protestors achieved legal success when a federal judge ordered the cancellation of its federal trademark registrations because the mascot offends Native Americans under the Lanham Act.[8]  The appeal board reasoned that ““Redskins” is a dictionary-defined slur and the National Congress of American Indians declared the name racist.”[9]  However, the cancellation of trademark registrations will not go into effect until after the appeals process is completed.

 

The Native American Mascot Controversy highlights that American minorities yearn for equality and to be rid of negative stereotypical imagery and representation.  It is imperative that indigenous American populations are respected to ensure equal treatment of all human beings, preservation of ancient cultures, and pride in modern native youth.  Remedial steps are beginning to solve the situation, but many result from tribal action rather than from governmental action.

[1] The Conversation, New Research Shows How Native American Mascots Reinforce Stereotypes, (Sept. 12, 2016), https://theconversation.com/new-research-shows-how-native-american-mascots-reinforce-stereotypes-63861.

[2] The Washington Post, President Obama Says, ‘I’d Think About Changing’ Name of Washington Redskins, (Oct. 5, 2013), https://www.washingtonpost.com/local/president-obama-says-id-think-about-changing-name-of-washington-redskins/2013/10/05/e170b914-2b70-11e3-8ade-a1f23cda135e_story.html?utm_term=.f8b1461c2267.

[3] Business Insider, A Native American Group Has a Unique Plan to Help Schools Get Rid of Racist Mascots, (Jan. 7, 2017), http://www.businessinsider.com/native-group-to-use-gambling-funds-to-rid-school-of-racist-mascots-2017-1.

[4] NCAA, Where Pride Meets Prejudice, (2016), http://www.ncaa.org/static/champion/where-pride-meets-prejudice/index.php.

[5] KENFL74, FSU Football Chief Osceola Renegade at Doak Tomahawk Chop, YouTube (Nov. 22, 2016), https://www.youtube.com/watch?v=J20wsKNV0NI.

[6] Change the Mascot, http://www.changethemascot.org (last visited Jan. 9, 2017).

[7] Id.

[8] The Washington Post, Federal Judge Orders Cancellation of Redskins’ Trademark Registrations, (July 8, 2015), https://www.washingtonpost.com/local/judge-upholds-cancellation-of-redskins-trademarks-in-a-legal-and-symbolic-setback-for-team/2015/07/08/5a65424e-1e6e-11e5-aeb9-a411a84c9d55_story.html?utm_term=.73185b9c7746.

[9] Id.

Will the Passage of Prop 206 Help Reduce Poverty in Arizona?

By: Robert Buddingh

In the November 2016 general election, Arizona voters approved Proposition 206.[1] Along with mandating employers to guarantee paid sick time to their employees, this measure will annually increase the minimum wage during the start of the next four years.[2] The current minimum wage in Arizona in 2016 is $8.05 per hour and is adjusted based on the cost of living in the state (this results in minor changes from year to year; had Prop 206 not been approved, the minimum wage for 2017 would’ve increased to $8.15 per hour).[3] With Proposition 206, the state minimum wage statute (ARS 23-363) will increase to $10.00 per hour in 2017 and to $12.00 per hour in 2020, with incremental increases in between, and with the minimum wage to increase in 2021 and beyond in accordance with the increase in the cost of living.[4] The current federal minimum wage is $7.25 per hour.[5]

Arizona has a larger than average amount of residents at or below the poverty line compared to the rest of the nation. While the U.S. in general had 14.7% of residents living in poverty in 2015, Arizona had the higher rate of 17.4%.[6] Both of these rates have steadily declined in the aftermath of the Great Recession.[7] It is important to note that the income one needs to earn in order to not be considered in poverty depends largely on the size of the family one is supporting. If one is part of their own single family household, then they need to earn around $12,000 in a year or more in order to not be considered living in poverty.[8] From there it goes up around another $4,000 for each additional family member (so a family of four needs to earn around $24,000 in order to not be considered impoverished).[9]

Minimum wage laws have been in effect in this country for over 100 years, but their effect on poverty has not really been documented well until much more recently.[10] The classic argument for having a higher minimum wage is that it will help people earn a “living wage” (meaning they earn enough to be able to afford life’s basic necessities like food, shelter and clothing), and therefore not have to rely on government assistance like welfare or food stamps. In turn, with this surplus of money due to a higher minimum wage, these workers can circulate more money into the economy by buying things they couldn’t have bought previously.[11] The classic argument against this is that if the minimum wage is too high in a certain area, employers will either outsource the jobs (or, more recently, turn to automation), or they will keep the employees at the higher wages but end up passing those higher bills onto consumers.[12] One other thing that critics of the view that the minimum wage will lead to more money for the working poor is that a large percentage (numbers vary, but most of the estimates are around 40%) of minimum wage workers are not in poverty or even close to it.[13] Many minimum wage earners are actually secondary income earners, like the spouse of a high-income earner, or the teenage kid who works a job after school for spending money.[14] It is these non-poor minimum wage earners that complicate things, as any minimum wage increase intended to help the working poor would also help these secondary income earners, while the possible job cuts associated with the higher minimum wage would affect both groups as well. So while raising the minimum wage would help most of the minimum wage workers, some need more help than others, and some may actually be hurt if employers believe that they cannot afford to pay that employee at a higher wage.

The two leading economists who have contributed the most to the minimum wage literature in American Academia are David Neuwark and Arin Dube, from UC-Irvine and UMass Amherst, respectively.[15] They have both looked at the “elasticities” of the relationship between raising the minimum wage and the amount of people in poverty. For example, if a state raises the minimum wage by 10%, and this results in a 2.4% reduction of the amount of people in poverty, then there is a -0.24 elasticity.[16] Neuwark and Dube have somewhat conflicting data on how much of a negative relationship (or elasticity) there is between raising the minimum wage and reducing poverty.[17] Neuwark believes that the job losses, although minimal, effectively cancel out the small benefit of the increased wages those members of the working poor that do keep their jobs.[18] Dube, who has more recent studies on the matter, as well as having reviewed many more studies (as minimum wage increases by states are a fairly new phenomenon) believes that there is a great deal of benefit to the working poor for raising the minimum wage.[19] However, this does not mean Dube wholeheartedly endorses an extreme increase in the minimum wage. Dube believes that a steady increase in the minimum wage is in order to combat poverty and inequality, but not so much that it hurts businesses and corporations.[20]

Both Dube and Neuwark agree that there are more effective ways of reducing poverty by only targeting those who both earn the minimum wage and are in poverty. They (and other economists) agree that an earned income tax credit would help the working poor by reducing their taxes.[21][22] This is both beneficial to the government and to the working poor, as the government does not have to collect this tax, which means that the members of the working poor have a higher economic gain, and with that, they can pull themselves out of poverty and end up not having to take as much government assistance, if any at all.

We do not know specifically how much of an increase in the minimum wage in Arizona due to Proposition 206 will help the state’s working class. And while it is true that there are negative effects to increasing the minimum wage, it is also true that there will be some benefit to some of Arizona’s poorest workers, some of whom, because of the state’s poverty rate, are themselves in poverty (I should also note that there is currently a legal challenge to the proposition that will be before the Arizona Supreme Court early in 2017, but regardless of the decision, the new law will take effect on January 1st).[23] While Arizona still has a lot to do in order to become a more fair state for workers and helping its poorest individuals and families, Proposition 206 seems like a good start in helping fix some of these problems.

[1] Arizona Minimum Wage and Paid Time Off, Proposition 206 (2016), Ballotpedia (Dec. 30, 2016, 12:30 PM), https://ballotpedia.org/Arizona_Minimum_Wage_and_Paid_Time_Off,_Proposition_206_(2016).

[2] Id.

[3] Id.

[4] Ariz. Rev. Stat. Ann. §23-363 (2017).

[5] Arizona Minimum Wage and Paid Time Off, Proposition 206 (2016), Ballotpedia (Dec. 30, 2016, 12:30 PM), https://ballotpedia.org/Arizona_Minimum_Wage_and_Paid_Time_Off,_Proposition_206_(2016).

[6] Allie Bice, Poverty Rates in Arizona Still Among Nation’s Highest, AZCentral (Dec. 30, 2016, 12:31 PM), http://www.azcentral.com/story/money/business/economy/2016/09/16/poverty-rates-arizona-still-among-nations-highest/90495336/.

[7] Id.

[8] Poverty Thresholds, U.S. Census Bureau (Dec. 31, 2016, 4:34 PM), https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html

[9] Id.

[10] William P. Quigley, ‘A Fair Day’s Pay for a Fair Day’s Work’: Time to Raise the Minimum Wage, 27 St. Mary’s L.J. 513, 516 (1996).

[11] Rachel Harvey, Labor Law: Challenges to the Living Wage Movement: Obstacles in a Path to Economic Justice, 14 U. Fla. J.L. & Pub. Pol’y 229, 231 (2003).

[12] David Neumark & William Wascher, Minimum Wages and Low Wage Workers: How Well does Reality Match the Rhetoric, 92 Minn. L. Rev. 1296, 1298 (2008).

 

[13] Id. at 1312

[14] Id.

[15] Mike Konczal, Economists Agree: Raising the Minimum Wage Reduces Poverty, The Washington Post (Jan. 4, 2014), https://www.washingtonpost.com/news/wonk/wp/2014/01/04/economists-agree-raising-the-minimum-wage-reduces-poverty/?utm_term=.0810da6d7f7d#comments

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Neumark, supra, at 1312.

[23] Arizona Minimum Wage and Paid Time Off, Proposition 206 (2016), Ballotpedia (Dec. 30, 2016, 12:30 PM), https://ballotpedia.org/Arizona_Minimum_Wage_and_Paid_Time_Off,_Proposition_206_(2016).

A Debtors Dilemma

By: Tiffany Setters

Having successfully trekked through the long, arduous years of law school, an attorney is most likely aware of what constitutes basic debtors’ rights.  For instance, they likely know that a creditor should refrain from showing up at a debtor’s door while ostentatiously handling a baseball bat, cracking his or her knuckles, and throwing around phrases like, “break-your-legs”.  In high-level legalese, this situation would be known as a definite no-no.  Not just a no-no; a definite no-no.  That term has not yet been included in Black’s Law Dictionary, but we can only hope it will be deemed the “Legal Phrase of the Year” in the next edition.

So how do creditors get debtors to “pay-up”?  As you may know, the remedies for nonpayment of debt are often frustrating for creditors.  Repossession, for example, is probably not the “brass ring” outcome that secured creditors were hoping for.  Similarly, an unsecured creditor may ascend to Cloud Nine after obtaining a judgement- only to hit the ground when they have to jump through more legal hoops to execute that judgement.  And wouldn’t you know it?  The debtor turns out to be insolvent and much of the creditor’s collection efforts have been wasted.

And don’t even get started on the Fair Debt Collection Practices Act[1]; a mere mention of the Act rings like an expletive in some creditors’ ears.  The FDCPA was passed due to “abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors,”[2] and has limited debt collection in numerous ways.  Among other practices, the FDCPA is supposed to put a halt to such things as overly harassing phone calls[3]; use of deceptive information to intimidate a debtor into paying[4]; and simply ignoring a debtor who disputes the amount of the debt owed[5].  In large part due to the FDCPA, the Federal Trade Commission gets more complaints about debt collection than they do about any other industry.[6]  And they are not sitting on such complaints. The FTA has recently stepped-up enforcement against creditors who engage in debt collection violations.[7]

For many creditors, this is a big pill to swallow.  Not only do they have less tools in their debt collection tool-box, they are now more likely to get a whack on the hand when they reach for one prohibited under the FDCPA (until the new administration takes over, that is).  Many creditors believe that they have enough trouble collecting a debt; must they “mollycoddle” a debtor too?!

But, despite this long lead-up, this post is not about lamenting the plight of creditors.  Stating the obvious, yes, creditors need to have legal means through which they can collect on a debt (even the FDCPA says so[8]). However, such means must be carefully defined.  Creditors cannot be given free rein to collect in any way that they please; as stated earlier, baseball bats and knuckle-cracking are not particularly worthy aspirations of a well-ordered society.  As such, debtors, like creditors, also need legally enforceable rights, particularly those designed to protect them from predatory collection practices.   In short, there are two sides to every story.

In debtor-creditor proceedings, which side of the story actually prevails depends primarily on how it is presented, and by whom.

That is the point of this post; that, more often than not, the creditor’s side of the debtor-creditor story is literary and leather-bound, while the debtor’s is written in crayon on a cocktail napkin.  While both sides have rights in our system, one side is much less likely to present theirs in a way that carries the day.  Though debtors have rights such as those under the FDCPA (again, often much to many creditors’ chagrin), debtors are less likely to understand such rights, or hire an attorney to help them do so.  Debtors have rights, yes, but due to limited legal sophistication and precarious financial status, millions upon millions of consumer debtors cannot take full advantage of them.

The nature of our current system, therefore, is such that when a debt gets dragged into court, debtors systematically stand in a severely disadvantaged position against their creditor opponents.  It leads us to ponder; is this social justice?  If not, how can we inject some social justice into the debtor-creditor legal arena?

The Debtor’s Dilemma

This post posits that average debtors often fall prey to social injustice.  Many debtors are on unequal footing in collection proceedings not because their legal position is weak, but because they very often do not have the legal knowledge or financial means to represent their case effectively.

It is safe to say that the average debtor has not taken “Secured Transactions” or “Bankruptcy and Debtor/Creditor Law”.  Average debtors are not lawyers.  They fulfill other careers that society needs to function; they are 2nd grade teachers, mechanics, convenient store clerks, sonogram technicians, small business owners (the list goes on and on).  Their job training never covered such topics as “adhesion contracts” or “default” or “statute of limitations”.

Yet, we all need food, shelter, water, clothing, and transport.  So, despite not having full-fledged training in all of the pitfalls surrounding debt agreements, the average debtor signs on the dotted line and hopes for the best.  This is not to say that all debtors do not read the paperwork they are signing, or even have a decent understanding of what they are getting into.  But let’s face it- if you had never been to law school, would have you known exactly how devastating a triggered acceleration clause can be?

The legal system has recognized that the average debtor lacks legal sophistication.  Most courts, for example, determine whether collection communications meets the standards of the FDCPA by applying the “least sophisticated debtor” standard.[9]  So the average debtor is not armed with knowledge necessary to ride into court battles against their creditors; that is, without being felled in the first onslaught.  But can’t she or he just hire a lawyer?  A champion to fly her or his flag, and who can face creditors with a proper sword rather than a rusty old pitchfork or the like?

Not to be flippant, but newsflash: the typical outstanding debtor is likely not flush with cash.  Though it is naïve to finish that last line with, “otherwise they would be paying their debts”, much of the time that is true.  Yes, some outstanding debtors choose not to pay their debts; but the fact remains that a significant portion of such debtors cannot pay their debts AND keep food on the table. For example, one third of those who file bankruptcy (ostensibly to discharge debts) are below the poverty line.[10]  The leading causes of bankruptcy do not including profligate spending, but rather situations the debtor never saw coming and which nonetheless deliver devastating financial blows; medical issues, unemployment, and family break-ups.[11]  Consumers typically do not choose to end-up in such situations, suddenly facing huge bills with no bump in income.

And only a fraction of indigent debtors actually file for bankruptcy, possibly because they cannot even afford to pay the filing fee.[12]

The annual growth rate of consumer debt has outstripped the annual growth rate for household income for many years now, leaving millions of Americans on precarious financial ground.[13]  Because the debt-to-income ratio is so large, the middle class is eroding at an alarming rate, and the poor are sinking even deeper into the quicksand of debt.[14]  A huge swath of the American citizenry is “debt poor”.  “Debt poor” debtors are not counted as “poor” under the poverty measure, because their incomes are technically above the poverty threshold; yet, thanks to interest payments on their consumer debt, they cannot afford basic necessities.[15]   When a debtor cannot afford basic necessities, obligations like credit card bills, medical bills, and mortgage or car payments take a back seat.  And so does the payment of an attorney’s retainer.

If you need more evidence that millions of outstanding debtors are facing poverty, and are not likely to seek out a lawyer to assert their debtor’s rights, consider this: in recent years, there has been growth in the number of citizens who are jailed due to their inability to pay certain debts owed to the state.[16]  It seems that, in these cases, if the debtor had the money to pay debts for which they could be incarcerated, they would; jail time is arguably the ultimate motivator to do so.  If they do not have the money to keep out of jail, they most certainly do not have it to pay an attorney.

This entire section adds up to an obvious conclusion: the average debtor often cannot adequately represent themselves in legal proceedings because one, they probably are legally unsophisticated, and two, they very well may be too indigent to pay an attorney.  So how can we resolve this problem? How might we put the average debtor on equal footing with the typical major creditor?  How can we make the average debtor-creditor legal proceeding a “fair fight”?

Calling in the Cavalry: How Attorneys Can Help Level the Playing Field

Which brings us back to the opening paragraph of this post.  Lawyers are likely familiar with basic debtor’s rights.  That is, unless they took the bar and quickly repressed all of the studying leading up to it, which actually may be the case considering how traumatic the bar can be.  But even if lawyers are not 100% on debtor-creditor relations, they know where to look to get their questions answered.

It does not take a stretch of the imagination to conclude that attorneys may have forgotten what it is like not to know these things- or in other words, to stand in the average debtor’s shoes.

Yet, that is an important thing for attorneys to remember.  Despite what all the lawyer jokes say, attorneys are not simply practitioners out to make a buck; they are officers of the court.  Not only must they recognize deficiencies in the administration of justice in our legal system, they must actively seek to defeat those deficiencies.  They must promote equal access to justice for all, regardless of inability to pay. Every lawyer has an obligation to provide pro bono legal services to the indigent precisely for this reason.

77 million consumers- 1 in 3 Americans- are undergoing debt collection.[17]  And as stated earlier, many of these consumers may not have equal access to justice because of legal unsophistication and/or minimal funds.  A lawyer, therefore, has ample opportunity to offer pro bono services for this cause.  What is the best way to provide as much pro bono help to as many as possible?  Many jurisdictions have ideas.

One such idea recognizes where debtor’s need the most help; at their Court date.  The Utah State Bar handles a creditor-debtor pro bono signature project with the cooperation of judges and pro bono attorneys alike.[18]  Collection actions involving pro se debtors with debts less than $20,000 are placed on one designated calendar.[19]  Firms or other organizations, such as the Attorney General’s Office, offers to “cover” the calendar by providing pro bono attorneys.[20]  Such attorneys are covered by malpractice insurance provided by the Bar.[21]

A staff member of the Utah State attends the calendar with the pro bono attorneys, and asks each pro se debtor if they would like to speak with a pro bono attorney prior to their case being called.[22]  If the debtor answers in the affirmative, a pro bono attorney provides the debtor with a specially-designed, one-page limited representation agreement.[23]  The agreement, in accordance with ethical rules, limits an attorney’s conflict check to known conflicts.[24] Once the debtor signs the agreement, the pro bono attorney advises the debtor and, with the debtor’s permission, negotiates settlements on their behalf.[25]  The program has been hugely successful[26], and is ripe to be picked-up by other jurisdictions.

Another idea has been executed by the Faculty of Federal Advocates, supported by the Colorado State Bar, which assists debtors in adversary bankruptcy proceedings involving discharge or dischargability claims.[27]  The debtors are pro se, or essentially so since the original fee agreement with their bankruptcy attorney does not cover adversary proceedings.[28]  Pro bono attorneys who take such cases are covered by the program’s malpractice insurance.[29]  A similar program exists in Minnesota, created by the Minnesota State Bar Association Bankruptcy Section, in cooperation with U.S. Bankruptcy Court for the District of Minnesota and the Volunteer Lawyers Network in Minneapolis.[30]

Some debtor pro bono programs utilize the efforts of law students to tackle the problem of unrepresented debtors.  Rutgers University School of Law-Camden Bankruptcy Pro Bono Project does just that, with pro bono attorneys supervising law students in an effort to provide debtors with full pro bono bankruptcy representation.[31]  Other programs assisted by other law schools have a similar structure.

Pro se help desks, clinics or pro se filing preparation[32] are the old standbys of pro bono services for consumer debtors, and most states offer such services.  An attorney can contact their state bar as a starting point to find out how they might spend a little or a lot of time providing short consultations to debtors in need of a little direction.

And of course, an attorney may help struggling debtors the old-fashioned way; by offering them full representation on a pro bono basis.

Conclusion

Struggling debtors get called to the legal mat every day; and that is perfectly fine.  What is less “fine” is the fact that debtors very often do not have the know-how or financial chops to face creditors on an even playing field.  Attorneys can help level the playing field by providing pro bono services to consumer debtors, fulfilling their duty to promote justice for all.

 

 

 

 

 

 

 

 

 

 

 

[1] 15 U.S.C. § 1692 (1978).

[2] 15 U.S.C. § 1692(a) (1978).

[3] 15 U.S.C. § 1692(d) (1978).

[4] 15 U.S.C. § 1692(e) (1978).

[5] 15 U.S.C. § 1692(g) (1978).

[6] Debt Collection, Fed. Trade Comm’n, https://www.ftc.gov/news-events/media-resources/consumer-finance/debt-collection (last visited Jan. 15, 2016).

[7] FTC and Federal, State and Local Law Enforcement Partners Announce Nationwide Crackdown Against Abusive Debt Collectors, Fed. Trade Comm’n (Nov. 4, 2015), https://www.ftc.gov/news-events/press-releases/2015/11/ftc-federal-state-local-law-enforcement-partners-announce.

[8] 15 U.S.C. § 1692(a) of the FDCPA provides that, “Means other than misrepresentation or other abusive debt collection practices are available for the effective collection of debts.”

[9] Christian Stueben, Judge or Jury? Determining Deception or Misrepresentation under the Fair Debt Collection Practices Act, 78 Fordham L. Rev. 3107, 3127 (2010).

[10] Andrew P. MacArthur, Pay to Play: The Poor’s Problems in the BAPCPA, Emory Bankr. Dev. J. 407, 410 (2009).

[11] Id.

[12] Christine Dugas, Only a fraction of those in need file for bankruptcy, USA Today (June 9, 2010, 4:58 PM), http://usatoday30.usatoday.com/money/economy/2010-06-09-bankruptcy09_CV_N.htm (last updated

[13] Steven Pressman & Robert H. Scott, Consumer debt and poverty measurement, 27 Focus, no. 1, 2010, at 9, 9.

[14] Heather Long, America’s poor are still heavily in debt, CNN Money, (Dec. 1, 2015, 12:23 PM), http://money.cnn.com/2015/12/01/news/economy/america-poor-in-debt/.

[15] Pressman & Scott, supra note 13, at 10.

[16] The new debtors’ prisons, The Economist (Nov. 16, 2013), http://www.economist.com/news/united-states/21589903-if-you-are-poor-dont-get-caught-speeding-new-debtors-prisons.

[17]Jeanne Sahadi,1 in 3 U.S. adults have ‘debt in collections’, CNN Money (Aug. 7 2014, 11:49 AM), http://money.cnn.com/2014/07/29/pf/debt-collections/.

[18] Mark T. Andrus, I Came, I Saw, I Made a Difference: Pragmatic Pro Bono Programs for the Twenty-First Century, Consumer Fin. Servs. Committee Newsl. (A.B.A. Bus. L. Sec., Chi., IL), December 2015, at 7, 7, http://apps.americanbar.org/buslaw/committees/CL230000pub/newsletter/201512/pro_bono.pdf.

[19] Id. at 9-10.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Allyn M. O’Connor, Bankruptcy Assistance: Creative Strategies, A.B.A., http://www.americanbar.org/publications/blt/2010/12/pro_bono.html (last visited Jan. 15, 2016).

[31] Id.

[32] Id.

The Trouble with TANF in Arizona

By: Eleni Fujiwara

As we look back this past year, we examine what has been and we look to see what could be. An examination of Arizona’s policies regarding the Temporary Aid to Needy Families Program (TANF) has many waiting in anticipation to what the new year will bring. The TANF program was created through the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.[1] The TANF program provides temporary cash benefits and supportive services to the neediest of Arizona’s children and their families.[2]  In order to be eligible for TANF, a families income may not exceed either 100% or 130% of the current federal poverty level, depending of the household situation.[3]

 

In 2016 the Arizona legislature became the first and only state to approve a one-year lifetime limit on cash assistance for families receiving aid from the Temporary Aid to Needy Families Program (TANF).[4]  This is a one-year reduction from the previous two year assistance.[5] In comparison, federal law allows a state to keep a family on TANF for up to five years, Arizona over the years has chosen to drastically reduce this aid to one year.[6] The reduction in assistance means an estimated 2,500 people, including 1,500 children, will no longer qualify for even the most modest stipend the program provides, that’s $278 a month.[7] With the recent legislation cuts in TANF, one is to wonder, why would the legislation approve such a reduction when Arizona has one of the highest poverty rates in America.[8]

 

With the reduction in TANF, one would be worried about what the Arizona legislation may reduce next. Other state programs that provide aid to Arizona low-income families are the  Supplemental Nutritional Assistance Program (SNAP), Arizona Health Care Cost Containment System (AHCCCS), Child Care subsidy, KidsCare, and the School-tuition scholarship.[9] So what can the Arizona legislation do in 2017 to offset the reduction in timely aid to needy families? Raise the amount of cash assistance.

 

Since 2015, nine states have raised TANF benefit levels, increasing the median state benefit from $429 to $432.[10] Although the raise in benefits does not appear to be much, it is a step in the right direction. Arizona would fair well to follow in the steps of the some the states to improve the amount and years provided by their TANF programs. TANF was created to aid needy families during times when they are striving to find stability for their families, Arizona’s 2016 recent reduction in TANF will only provide pressure and uncertainty to needy families. We can only hope that the Arizona legislators will examine the fault among its own doing and change it quickly before Arizona families find themselves in a direr situation.

[1] Policy Basics: An Introduction to TANF. Center on Budget and Policy Priorities. June 15, 2015.

[2] https://des.az.gov/content/cash-assistance-overview

[3] Id. The 130% of the current poverty level is for families in which the head the of household is a non-parent relative requesting Cash Assistance only for the dependent children. The 100% of the current federal poverty level is for all other families.

[4] Glenn, Sydney. “Arizona first to establish lifetime limit on cash assistance program.” Cronkite News Service. http://www.azcentral.com/story/news/arizona/politics/2015/10/19/arizona-first-state-lifetime-limits-financial-assistance-cns/73818446/ http://www.azcentral.com/story/news/arizona/politics/2015/10/19/arizona-first-state-lifetime-limits-financial-assistance-cns/73818446/. October 21, 2015.

[5] Pitzl, Mary Jo. “Arizona limits poverty aid to 1 year; strictest in U.S.” The Republic, http://www.azcentral.com/story/news/politics/arizona/2016/07/01/arizona-limits-poverty-aid-1-year-strictest-us/86499262/. July 1, 2016.

[6] Id.

[7] Id.

[8] Bice, Alice. “Poverty rates in Arizona still among nation’s highest.” Cronkite News, http://www.azcentral.com/story/money/business/economy/2016/09/16/poverty-rates-arizona-still-among-nations-highest/90495336/. September 16, 2016.

[9] Pitzl, Mary Jo. “You might be surprised what qualifies as ‘poor’ in Arizona.” The Republic, http://www.azcentral.com/story/news/politics/arizona/2016/08/08/arizona-what-is-poor-poverty/86353186/ August 8, 2016.

[10] Stanley, Megan. “TANF Cash Benefits Have Fallen by More Than 20 Percent in Most States and Continue to Erode.” Center on Budget and Policy Priorities. October 17, 2016.

The states that have raised TANF benefits include, Montana, Nebraska, New Mexico, South Carolina, South Dakota, Texas, Virginia, Wyoming, and District of Columbia.