Criminalizing Poverty in New Hampshire – posted 10/4/2015

October 4, 2015 3 comments

In a new investigative report, the American Civil Liberties Union (ACLU) of New Hampshire found that Circuit Court judges in our state are jailing debtors who have no ability to pay fines or fees they owe. Instead of inquiring into whether they are “willfully” failing to pay, judges are locking poor people away.

The practice is reminiscent of debtor’s prison, an institution with deep historical roots in America and England. Back in the 19th century, jailing debtors who were unable to pay a court-ordered judgment was a common legal practice. Debtors typically worked off their debt or they had to find some outside source of funds to pay off the amount owed in order to get out of jail.

Charles Dickens went through the experience of having his father and the rest of his family incarcerated in Marshalsea Debtor’s Prison when he was 12 years old. Dickens had to leave school to work in a factory to help support his family. His father’s time in the debtor’s prison was traumatic for the whole family and it had a shattering psychological impact on the young boy. Of that time, Dickens later wrote:

“… My whole nature was so penetrated with grief and humiliation…that even now, famous and caressed and happy, I often forget in my dreams that I have a dear wife and children; even that I am a man; and wander desolately back to that time of my life.”

In his work Dickens repeatedly wrote about debtor’s prison, most notably in his novel, Little Dorrit. The long shadow that family experience cast for Dickens is instructive about the human cost that is being inflicted on debtors right now.

The ACLU-NH found the practice of jailing debtors who had an inability to pay is systemic and not caused by rogue judges. In their report, they found nine judges in ten different circuit courts throughout the state jailing debtors who had no ability to pay their fines.

As pointed out by the ACLU-NH, debtor’s prison is supposed to be illegal. That law is well-established by both U.S. Supreme Court precedent and by state statute and rules. The law states that before an individual can be incarcerated for failure to pay a fine or fee, the court must meaningfully inquire into the reasons for failure to pay and it must determine that the individual is “willfully” refusing to pay despite having sufficient resources. The law prohibits courts from jailing individuals who simply cannot afford to pay.

The ACLU-NH also notes that both the federal and state constitution require representation by counsel if the judge is considering jailing for failure to pay a fine or fee in a criminal case. The ACLU-NH found that judges in New Hampshire were not conducting a meaningful ability-to-pay hearing. The word they use to describe current process was interesting – hyper-expedient. Neither were judges appointing counsel for poor people they were sending to jail.

The ACLU-NH report included several representative personal stories. In one case, Alejandra Corro, a 22-year-old single mother of two very young children, stole assorted infant clothing from Sears. She took the clothing for her children. Ms. Corro pled guilty and the court fined her $1000 with $500 suspended. The court added a $120 penalty assessment so the total owed was $620. The court authorized Ms. Corro to pay off the balance through 62 hours of community service.

Some time after that, Ms. Corro’s apartment burned. She had to move in with her mother. When she returned to court, she had only completed 20 of the required 62 hours but she stated the intention to complete the rest. Her previously appointed public defender tried to assist Ms. Corro but the court denied her request for an ability-to-pay hearing as well as her request for counsel. The court ruled that if Ms. Corro could not pay the remaining $420 she owed that day, she would be sent to Valley Street Jail in Manchester for nine days.

With the help of her public defender and the ACLU-NH, who filed an emergency petition, Ms. Corro only served one night in jail.

Another story in the report highlighted a homeless man named Dennis Suprenant who had been charged with misdemeanor conduct after a vehicle accident. Because Suprenant was indigent, he obtained a public defender to represent him on the charge. While his case was pending, the state’s Office of Cost Containment sent Suprenant notices about his non-payment of public defender attorney’s fees. Unlike some states, New Hampshire bills poor people for public defender services.

At a review hearing in February 2014, the court ordered Suprenant to pay $302.50 in its entirety by the end of the day or he had to go to jail. Suprenant’s public defender informed the court that the judge’s order would cause Suprenant to lose a job he had obtained two weeks earlier. Suprenant had, in fact, been making some positive strides in his life. He had entered drug treatment, graduated from a drug rehabilitation program, obtained his GED and started the job. The public defender argued jail would set back Suprenant to where he was before.

The judge responded by amending his order. He required Suprenant to pay all the money in his possession — $90. He then ordered that the remaining balance – $212 – be paid in less than two days. The court ordered that if the remaining $212 was not paid in two days, Suprenant was going to jail at Valley Street where he would be held until the amount was paid in full. How someone who was indigent would come up with that money while he was in jail remains a mystery.

The Public Defender and the ACLU-NH filed an emergency petition that resulted in the judge’s order being stayed.

I do not think these stories are unusual. Other than the fact that Ms. Corro and Mr. Suprenant ultimately got counsel, their stories reflect a strong national trend. All over the country, poor people are being jailed for failure to pay an increasing array of fees and fines associated with minor offenses and their rights are routinely ignored. These collateral costs follow offenders around and make it much harder for them to turn their lives around. Advocates have been calling it the criminalization of poverty.

National Public Radio (NPR) has reported that since 2010, forty-eight states have increased criminal and civil court fees. Offenders are now being charged for a long list of government services that were once free, including ones that are constitutionally required.

NPR found at least forty-one states charge inmates room and board for prison stays. Forty-four states bill offenders for their own probation and parole supervision. In forty-nine states there is a fee for electronic bracelets monitoring offenders when they are out of jail. At least forty-three states now bill defendants for public defenders. Inmates everywhere in the U.S. are charged unreasonably high fees for telephone calls from jail. As NPR reported, these fees often add up to hundreds and sometimes thousands of dollars. NPR estimated that between 80 to 85% of inmates now leave prison owing debt for court-imposed costs, restitution, fines and fees.

While state officials commendably responded to the ACLU-NH report and expressed a commitment to ending debtor’s prison, they do not appear to be seeing the big picture. We need to consider whether it is fair and just to shift the costs of running the criminal justice system onto the backs of some very poor people. All the fees and fines imposed on them make their lives and their reentry into society much harder. The New Hampshire Legislature should adequately fund the court system so that impoverished people who have committed a crime but who want to change and improve their lives are not unjustly burdened with debt they cannot pay.

Also, it makes no economic sense to jail people who cannot afford to pay fees or fines. The cost to the state for court proceedings and for housing people in jails far exceed the amount that defendants are charged as the ACLU-NH report argued.

The deeper moral issue here is the way our society treats our poor and vulnerable people. Where is our Charles Dickens to tell their stories and to speak for them in this time and place?

Mass Deportation of the Undocumented: A Terrible, Failed Idea That Trampled Due Process – posted 9/20/2015 and published in the Concord Monitor on 9/25/2015

September 20, 2015 2 comments

This piece appeared in the Concord Monitor on 9/25/2015 under the title “Dearly Deported”.

In his platform and in his speeches, Donald Trump includes the idea of deporting the eleven million undocumented people in the United States. At a recent rally in Dallas, he described the undocumented immigrants as part of a “dumping ground for the rest of the world”. He has said the majority of undocumented immigrants are criminals and violent gang members. Since Trump is the current GOP frontrunner and since polls show the idea of mass deportations is popular among Republicans, I think his idea deserves serious scrutiny.

Trump has said that as president he would deport all undocumented immigrants and then allow the “good ones” to reenter the country through an expedited process. He has said the “good ones” could live in the United States although not as citizens. Trump has not yet said how he would locate, round up, and deport the eleven million immigrants he believes must be deported. He has said it would only take eighteen months to two years to get the job done.

Trump has also said that the U.S. born children of illegal immigrants also must go. Under current law, these children are considered legal citizens.

The journalist, Jorge Ramos, has pointed out that Trump would need to deport 458, 333 immigrants per month or 15, 277 people per day to complete his plan in the projected time period. Ramos has also said that the U.S. Immigration and Customs Enforcement agency has estimated that it costs $12,500 to deport one person. Using that estimate, it would cost $137 billion to do the deportations Trump wants.

Most commentators, whether liberal or conservative, recognize that the cost of mass deportations would be prohibitively expensive. I have seen other estimates in the cost range from $285 billion to $600 billion. The price tag would include the costs of apprehension, detention, legal processing, and transportation.

The legal and constitutional issues raised are vast. Due process, equal protection, and Fourth Amendment claims jump out. If Trump does intend to deport U.S. born children of illegal immigrants, what about the Citizenship Clause of the Fourteenth Amendment? Would Trump try to deport U.S. citizen children?

Assuming he would not (which may not be the case), what would happen to those children when their parents are sent across the border? There are so many mixed immigration status families. American citizens would be put in the extremely difficult position of having to decide whether to stay in their home country, away from their families, or leave. It would be a Sophie’s choice.

And how would undocumented workers respond to the deportations? While some might go voluntarily, it is a safe bet that many would not. I would predict the desperation level would be extreme. Undocumented workers are typically among the most vulnerable and exploited workers in America. Unscrupulous employers are notorious for preying on these workers by cheating on wages, subjecting them to dangerous conditions and by ignoring worker injuries. One can only imagine what accommodations, compromises and deals undocumented workers would make to stay off the immigration authority radar screen so they could stay in the country.

Then I should mention the many undocumented immigrants who own businesses and employ others. By some estimates, hundreds of thousands of American small businesses are owned by undocumented immigrants. The business could be a restaurant, a corner convenience store, or a small construction outfit. Would these businesses just be shut down? What would happen to the assets?

If an undocumented business owner poses no threat to national security, runs his business lawfully, pays taxes, and hires American citizens, does it make sense to close that business down?

Trump’s plan almost assumes there is no Constitution or other legal authority. Millions of undocumented immigrants would assert rights that they have under current law. Even if he was serious about pursuit of mass deportations, the timeline Trump projects is la-la land. The possible legal issues are endless and they would be hard fought until the end. The legal fight-back would be aggressive and sophisticated.

Imagining the process of mass deportations is imagining a nightmare scenario. What dragnet would catch these people? Would Americans be encouraged to become stool pigeons ratting out their neighbors? Across the country, how would the immigration authorities zero in on the undocumented? Almost certainly, skin color, accent, and manner of dress would place some people at a higher risk for a stop and investigation.

For a nation of immigrants, the gestapo-like endeavor of ferreting out, arresting and deporting millions is utterly un-American and an affront to our Constitution.

What makes this even worse is that a plan similar to Trump’s has been done before and very few Americans even know about it. In an episode that goes back to the Great Depression-era years of 1929-1936, federal, state, and local authorities sanctioned policies that resulted in mass deportations of Mexicans and Mexican-American citizens. That forced return to Mexico is known as the Mexican Repatriation. Although not well known history to Anglos, the Mexican Repatriation is now widely seen as a humanitarian disaster that trampled due process.

The repatriated mostly had lived in California, Michigan, Colorado, Texas, Illinois, Ohio and New York before they were deported.

In 2006, the state of California formally apologized for its role in those deportations and expressed contrition to the deportees “for the fundamental violation of their basic civil liberties and constitutional rights during the period of illegal deportation and coerced emigration”. In 2012, the city of Los Angeles also issued a formal apology to the victims of the repatriation. The federal government has never apologized.

The history of that era is instructive. In 1929, in the aftermath of the stock market crash and 25% unemployment, President Herbert Hoover’s administration sought a scapegoat for the horrendous economy. Hoover was widely hated by masses of people for doing nothing to help everyday people who faced an awful economy. Hoover settled on the Mexicans to be a scapegoat. During the 1930’s, an estimated one million Mexicans and Mexican-Americans were deported back to Mexico. An estimated 60% of those deported were U.S. citizens.

At the time, many Americans believed that foreigners were taking jobs and services they needed. They saw the repatriation as leading to jobs for “real Americans”. There was an irony about this view. Before the 1929 Great Depression, U.S. employers, with the support of the government, had greatly encouraged Mexican migration to the United States. That migration had been seen as helpful to the economic development of the southwest. The Great Depression changed all that.

President Hoover’s Labor Secretary, William A. Doak, helped to engineer the mass deportations. Doak had immigration officers scour the country for illegals. His immigration officers raided union halls, dances, social clubs and other Mexican enclaves.

The repatriation made a mockery of any legal process. Intimidation was the general rule. Immigration officials armed with guns and batons conducted sweeps looking for suspects of Mexican ancestry. When suspects were found, they were usually arrested without any arrest warrant. Often, they were denied counsel. Deportation hearings were conducted inside city or county jails. The immigration officer acted as interpreter, accuser, judge and jury. Not comprehending their rights, some volunteered to self-deport.

The norm was that no legal record or judicial transcript of these hearings were kept. Even if an immigrant invoked the desire for counsel, that privilege was left to the discretion of the immigration official. There is evidence that Mexicans were misled and enticed to leave the country by being told they would be able to return later when that promise was false.

The repatriation broke up many families. Thousands of children who had lived in the United States their entire lives and who could not speak Spanish were sent to Mexico to live for the rest of their lives. In many cases, those who were deported never saw their family members again.

Considering the current discussion about mass deportation prompted by Trump, I find it amazing how little awareness there is about our buried experience with Mexican repatriation. There is a reason Gore Vidal used to talk about the United States of Amnesia. Americans have a bad history with forgetting. We have a blind spot with Latino history. While there is more awareness of historical crimes committed against Native Americans and African Americans, the crimes committed against Latinos have been hidden away. I think the Mexican repatriation is a perfect example.

There is a cluelessness and utter lack of historical awareness in Trump’s plan. He does not seem to know his idea was tried before in the 1930’s with disastrous results. Also, he needs to be called out on lies. Whatever people think about illegal immigrants, the overwhelming majority are not criminals or violent gang members. Most are looking for a better life and economic opportunity. That is something immigrants have always done coming to America.

Comprehensive immigration reform, including a path to citizenship for the undocumented, is a far superior approach to Trump’s. Trump has indulged in hateful demagoguery and his ideas around mass deportations need to be utterly rejected.

Leave the Fourteenth Amendment Alone: The Republican Presidential Candidates and Birthright Citizenship – posted 9/6/2015

September 6, 2015 2 comments

I must say I was surprised when I saw that illegal immigration was going to be a defining issue for Republican presidential candidates. After losing the Latino vote so decisively in 2008 and 2012 (McCain got 31% in 2008 and Romney got 28% in 2012), conventional wisdom had predicted the Republicans would moderate and support some version of comprehensive immigration reform, including a path to citizenship for the undocumented.

Conventional wisdom was wrong. Latino outreach does not appear to be on the Republican agenda. Not only have they not moderated, the Republicans have doubled down and pushed in a more extreme, nativist direction. Their candidates, most notably Donald Trump, have advocated a mass deportation of the eleven million undocumented, building a 2000 mile impenetrable wall on our southern border, rescinding the Executive Order on the DREAM act, and tripling the number of immigration agents.

We have also heard proposals like Chris Christie’s who suggested tracking non-citizens like FedEx courier packages.Then there is Scott Walker’s idea to build a wall on our Northern border with Canada.

Most radically, Trump has proposed ending birthright citizenship for so-called anchor babies. He has been joined ideologically in this endeavor by Scott Walker, Rand Paul, Lindsey Graham, Bobby Jindal and Rick Santorum, among others. Trump says that birthright citizenship remains the biggest magnet for illegal immigrants.

Birthright citizenship refers to a person’s acquisition of United States citizenship by virtue of the circumstances of their birth in the country.

Ending birthright citizenship would require addressing the Fourteenth Amendment of the U.S. Constitution, whether by court challenge or by constitutional amendment. The Fourteenth Amendment plainly states, in part,:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Since the adoption of the Fourteenth Amendment to the Constitution on July 9, 1868, the citizenship of persons born in the United States has been controlled by this Citizenship Clause.

At the risk of being called a loser by Trump fans, I admit that I find the idea of politicians’ monkeying with the Fourteenth Amendment a sickening prospect. One hundred and fifty years later, I don’t think it needs their “improvements”.

The Fourteenth Amendment is not any old amendment. The Civil War was fought over this amendment. There is much blood behind it. The Fourteenth Amendment negated the infamous Dred Scott decision of 1857 which held that neither slaves nor their descendants could ever become citizens. It is not an exaggeration to say that the Fourteenth Amendment is the best reflection of our fundamental national commitment to fairness.

Immigration restrictionists have latched on to the phrase “subject to the jurisdiction” to say that the Framers intended to exclude the children of illegal aliens from the protection of the Citizenship Clause. While no one can pretend to divine the intent of the Framers, I would submit that interpretation is highly unlikely.

A heavy preponderance of legal scholarship supports the proposition that the ratification debates taken as a whole indicate that the Fourteenth Amendment was designed to extend citizenship to all people born in the United States regardless of the race, ethnicity, or alienage of their parents.

I would particularly cite the work of historian, Garrett Epps, the author of Democracy Reborn, a fascinating history of the Fourteenth Amendment and the fight for equal rights in post-Civil War America. Epps has written:

“After the crime of slavery, the framers of the Fourteenth Amendment wanted to create a new nation in which there would be no sub-humans, no inferior caste that could be sold on to plantations or herded into camps. The citizenship clause is a key part of the structure they built. There are some scholars who disagree, but mostly they are not “the top”. Most of the anti-birthright “evidence” is phony.”

Epps points out the incongruity that passionate anti-slavery thinkers who devised the Citizenship Clause as a means of overruling Dred Scott would have any intention to create a new class of non-citizens lacking all rights. Context is important and Epps believes the Framers were very tuned in to migration controversies of the era. During the Civil War years, the U.S. population increased by four million people – most of them immigrants.

In that era, immigration restrictionists complained about gypsies and the Chinese. Epps says the Framers knew what they were doing and they intended to address both the matter of the former slaves and immigrants in drafting the Fourteenth Amendment. They wanted to put citizenship above the politics and prejudices of any given era.

In this connection, I would be remiss if I did not mention a little known but extremely relevant U.S. Supreme Court decision decided in 1898. The case, United States v. Wong Kim Ark, speaks directly to those complaining about anchor babies today. Wong Kim Ark, the son of Chinese parents, was born in San Francisco in 1873. His parents were not citizens and they moved back to China after his birth,

Wong Kim Ark became a test case when he returned to the U.S. from China, sought readmission into the country, and was refused. This was not his first return trip back to the U.S.. Wong Kim Ark sued, challenging the government’s refusal to recognize his citizenship.

This was an era of vicious racism directed against the Chinese who had been scapegoated, in part, because of a bad economy. Humiliating, berating, harassing, beating and murdering of Chinese was so commonplace that newspapers seldom bothered to print the stories. A less told story is the frequent lynching of Chinese workers that occurred in the West. In California, mob violence directed against Chinese people was not uncommon.

In the late 19th century, Congress passed a Chinese Exclusion Act which prohibited all immigration of Chinese laborers. The Exclusion Act also prohibited immigrants from China from becoming naturalized U.S. citizens. Violators faced up to 10 years’ imprisonment, plus deportation. I would note that, along with the Chinese, exclusion policies extended to the Japanese and Filipinos.

In spite of this very difficult political environment, the Supreme Court ruled for Wong Kim Ark, stating,

“…to hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German or other European parentage who have always been considered and treated as citizens of the United States.”

The Court narrowly interpreted the Citizenship Clause phrase “subject to the jurisdiction” to mean being required to obey U.S. law. Down through the years, the excluded have been a limited class of individuals who are not subject to U.S. law such as the children of ambassadors.

In considering the matter of illegal immigration now, I am struck by historical parallels with earlier waves of nativist hysteria. It is a recurring theme in American history where some ethnic group or other is blamed for failures in the economy. Targets have included Irish Catholics, German-Americans, the Chinese, the Jews, and south-eastern Europeans, among others.

Attacking birthright citizenship is just the latest incarnation of this deep-seated nativist tendency. This time around the target is Latinos. How they crashed the economy, exported good jobs from the U.S. and refused to raise wages is never explained.

In his essay, “The Paranoid Style in American Politics”, the late historian Richard Hofstadter discusses conspiratorial mindset, nativist obsession, and the tendency to manufacture self-serving facts to promote an agenda. Trump’s fantasy that the Mexican government is shipping rapists and its worst criminals to America is like an example that could have been written about by Hofstadter if he were alive today.

The horrible problem with immigration internationally right now shows the need for an American response to the problem that is both rational and compassionate. In 2015, it is sad to see a major American political party, oblivious to our history, going down such a dark direction.

Remembering Julian Bond – posted 8/23/2015 and published in the Concord Monitor on 8/29/2015

August 24, 2015 4 comments

This piece appeared in the Concord Monitor on 8/29/2015 under the title, “Justice loses one of its most thoughtful warriors”.

When I think of Julian Bond, the first words that come to mind are grace, humor and wit. These are not the words you might expect for a battle-hardened, long-time civil rights activist. Bond died on August 15 from complications of vascular disease.

My initial awareness of Bond dates back to the mid-1960’s when he became nationally famous. After passage of the federal Voting Rights Act in 1964, Bond ran for the Georgia House of Representatives. At that time he was 25 years old. He had dropped out of Morehouse College to work for the Student Non-Violent Coordinating Committee also known as SNCC. Bond was SNCC’s communication director. In that capacity, he travelled around the South, organizing civil rights and voter registration drives.

In 1965, gaining 82% of the vote, Bond won election to the Georgia House. However, the Georgia House refused to seat him. A few days before Bond was scheduled to take office, he had publicly supported a SNCC press release opposing the Vietnam war. Bond also voiced support for draft resisters.

At the time, Bond’s position on the war was not winning popularity contests among white Georgia legislators. The Georgia House accused Bond of treason because of his anti-war position. By a vote of 184-12, the Georgia House denied Bond his seat and declared the seat vacated. Bond then won two follow-up special elections which had been set up to unseat him. Each time, the Georgia House refused to recognize the election results.

Bond sued and amazingly, the federal court in Georgia sided with the action of the Georgia House. Bond had to take his case all the way to the U.S. Supreme Court. In 1966, the U.S. Supreme Court ruled 9-0 for Bond, holding that the Georgia House had denied Bond’s freedom of speech. The court decision upheld Bond’s right to political office. Among others, Dr. King had publicly supported Bond. These events made Bond a national figure.

Bond was early among activists in linking prosecution of the Vietnam war with persecution of Black people at home. He explained this more fully in 1967, stating:

“My position is that things that the United States does overseas are related to its behavior toward people inside the country and that there’s a relationship between what I consider our aggressive behavior in Vietnam and the treatment of minority groups inside the United States, that taken separately, both are wrong, and taken together, they’re even wronger. I imagine that – or rather I am of the opinion that our involvement in Vietnam is wrong, it’s illegal, it’s immoral, it’s un-Christian, it’s un-Buddhist, it’s un-Jewish, it’s un-Catholic; we ought not be there; we ought to disengage ourselves; and that there will never be decent treatment for minority people in this country until we begin to concentrate on freedom and justice and equality for those at home and stop worrying about puppet dictatorships and despotic governments in Southeast Asia.”

Bond had been very affected by the murder of his SNCC colleague, Sammy Younge. Younge was the first Black college student murdered in the civil rights movement. He had been an enlisted service member in the Navy where he served two years before a medical discharge and the start of his college career. In January 1966, Younge was shot in the back of the head by a white service station attendant at a Tuskegee gas station. Younge had been trying to integrate a “Whites Only” bathroom. Later an all-white jury acquitted Younge’s murderer. Bond said he learned from Younge’s example that even if you were a veteran, they would still shoot you down if you worked for civil rights in America.

In 1968, at the infamous Chicago Democratic convention, Bond was nominated to become Vice-President. He declined the nomination as he was only 28 years old. The Constitution requires vice presidents to be 35. Supposedly, Bond always liked telling that story.

Bond went on to serve 4 terms in the Georgia House and 6 terms in the Georgia State Senate. From 1998 to 2010 he was Chairman of the NAACP. Along with Morris Dees, he helped found the Southern Poverty Law Center.

There are a number of funny stories about Julian. Ben Jealous, former CEO of the NAACP, told one such story on Amy Goodman’s show, Democracy Now!. Jealous had asked Julian about his role in the famous 1963 March on Washington. Julian responded that his job at the march was to pass out Cokes to people who were really famous. Jealous said. “So what was the high point for you?”. Julian replied, “it was when Sammy Davis Jr. looked at me, winked and snapped his finger and pointed at me and said, “You know kid, you’re cool.”

Julian did have movie star good looks. He had a debonair quality and genuine charisma. He actually hosted Saturday Night Live one time in 1977.

In a Washington Post story after Julian died, his wife, Pamela Horowitz was quoted, saying:

“He had a wonderful sense of humor. You know that got him through the serious things he dealt with all his life. He used to joke that on his tombstone, one side would say “Race man” and the other side would say ‘Easily amused’. ”

Bond had a way with words. There are many good Julian Bond quotes. Here are a few of my favorites:

“Obama is to the tea party as the moon is to werewolves.”

“Violence is black children going to school for 12 years and receiving 6 years worth of education.”

“Good things don’t come to those who wait. They come to those who agitate.”

The journalist George Curry wrote that he always remembered a poem authored by Julian:

“Look at that girl shake that thing
We can’t all be Martin Luther King.”

Bond remained an activist until the end. He was not narrow. Along with 47 other people including NASA climate scientist James Hansen, he was arrested at a 2013 White House protest against the Keystone XL tar sands pipeline. He also was a strong supporter of LGBT rights. On gay marriage, he said, “Black people, of all people, should not oppose equality and that is what gay marriage is.”

In his last public speech in May 2015 at an event entitled “Vietnam: Power of Protest Conference” Bond said the following:

“We practiced dissent then. We must practice dissent now. We must as Dr. King taught us. “move beyond prophesying of smooth patriotism to the high grounds of a firm dissent based upon the mandates of conscience and the reading of history.” As King said then, and as even more true now, “A nation that continues year after year to spend more money on military defense than on programs of social uplift is approaching spiritual death.”

Julian Bond was a warrior for justice who never quit. It is hard to believe he is gone. He will be missed.

The NFL Concussion Settlement: A Very Problematic, Mixed Bag – posted on 8/16/2015

August 16, 2015 Leave a comment

With football returning, it is a good time to revisit developments in how the NFL is handling its achilles heel – the matter of concussions and repetitive head trauma. Deflategate is a sideshow. The deeper and darker side of the NFL is its handling of the players who have suffered repeated head injuries.

When I heard that Junior Seau’s daughter, Sydney Seau, was going to talk about her father at the Pro Football Hall of Fame ceremony earlier this month, I wondered if she would talk about her father’s brain injury. The NFL just posthumously entered Junior Seau into the Hall of Fame.

Apparently, the NFL also worried about what Sydney Seau might say because she was not allowed to give a speech at the ceremony. The NFL sidelined Sydney, allowing her only a few minutes on the NFL Network. How thin-skinned can you get!

It turned out that Sydney did not plan to use her speech to discuss her father’s brain injuries. Her remarks were a very moving tribute to her father. Considering that the Pro Football Hall of Fame ceremony went on for three and a half hours, it is sad the NFL could not allow the daughter of one of its greatest players her few minutes.

Concern about image trumped all other concerns. If Sydney Seau had gone off script and inveighed against football-related brain injuries, would the sky have fallen? The NFL money machine was taking no chances. They still balk at the simple and direct message: football produces brain injuries. Money always comes first with the NFL. Troubling images must be banished.

Probably the biggest pro football news of this year’s offseason was the settlement of the federal court class action lawsuit between the NFL and thousands of former players. On April 22, 2015, Federal Judge Anita Brody granted final approval to the NFL’s concussion settlement.

However, the lawsuit is certainly not over. Judge Brody must weigh final objections to the settlement and retired players must decide whether to opt out of the class. If individual players opt out, they could pursue individual lawsuits against the NFL. The class action case will definitely go to the Third Circuit Court of Appeals.

It is hard to feel too good about the settlement. While it does provide important, much-needed relief for players who suffer from Alzheimer’s, ALS, Parkinson’s and dementia, there is a big hole in the settlement agreement. The overwhelming majority of class members will receive nothing.

That is because chronic traumatic encephalopathy or CTE, the most prominent disease affecting retired players, is not compensable under the terms of the settlement. CTE claims have an extremely narrow window. Only players who have died and were diagnosed with CTE at anytime between January 1, 2006 and the date of final approval of the settlement, April 22, 2015, can be compensated.

I suppose this is not unlike many settlement agreements. A number will get very fair compensation but the terms of the agreement for those who have or will have CTE are nothing short of disastrous. Tons of players are absolutely left out.

Attorney Paul Anderson, an expert on the NFL and concussions, described the lawsuit settlement this way:

“The NFL Concussion Litigation was initially framed as a CTE lawsuit, but as negotiations progressed it was transformed into a cognitive-disorder settlement, all-but eviscerating future awards of CTE. CTE has been described as “the industrial disease of football”. Some objectors analogized the failure to compensate CTE in this case to an asbestos settlement excluding compensation for mesothelioma.”

Without getting too technical, CTE is a neurodegenerative disease that can lead to dramatic changes in mood, behavior, and cognition. A critical indicator of CTE is the build-up in the brain of an abnormal protein called tau. Making things tricky, these changes in the brain can sometimes start years or decades after an athlete’s career is over. We know that repetitive brain trauma can trigger a flood of events leading to progressive destruction of brain tissue.

Symptoms of CTE can include irritability, depression, memory loss, mood swings and emotional lability. CTE is also connected to violence, explosivity, social isolation, drug overdoses, suicides and loss of behavioral control. The medical world has delineated four stages of CTE with dementia classified as the final stage. At present, CTE can only be diagnosed after death.

CTE causes tremendous pain and suffering for family members who watch their former world class athlete/relatives deteriorate before their eyes. Some CTE sufferers become unable to do the most basic activities of daily living like dressing, feeding, and toileting themselves.

The settlement agreement forecloses any future awards for CTE. So if a retired player dies and he is then subsequently diagnosed with CTE after he dies, he will receive zero compensation unless he can prove he was cognitively impaired. Many classic symptoms of CTE, mood and behavior difficulties, are not compensable under the agreement. The agreement remains in effect for the next 65 years.

Junior Seau is a perfect example of the type of player who would not be compensated under the agreement. The symptoms he exhibited do not fit the terms of the settlement and his family opted out. So far 200 ex-NFL players have indicated they will opt out of the settlement.

Seven retired players including Sean Morey and Alan Faneca have already filed an objection to the settlement arguing the agreement is a lousy deal for the players but a great deal for the NFL and class counsel. The players criticize class counsel for failing to do any discovery. Many wonder whether taking testimony from NFL officials and gathering documents from the league would show whether the NFL concealed the dangers of concussions from the players.

A leading Boston University researcher and neuropsychologist, Dr. Robert Stern, has criticized the agreement because of the way it handles CTE. After the agreement, Dr. Stern told the Associated Press:

“Repetitive hits to the head do not lead to Alzheimer’s disease. They lead to CTE, if anything.”

Dr. Stern has written that many former NFL players have significant changes in mood and behavior, resulting, in part, from repetitive head impacts, that have led to inability to maintain employment, homelessness, domestic abuse, divorce, substance abuse, excessive gambling, poor financial decision-making and death from accidental drug overdoses or suicide.

Dr. Stern believes that in the next five to ten years there will be an accurate, clinically accepted and FDA-approved method to diagnose CTE during life.

As probably is obvious, the science around CTE is in its infancy. With the current state of science it is difficult to prove causation of former players’ behavior and mood problems with CTE even though it is seemingly apparent. There is a provision in the settlement agreement that the parties confer at least once every ten years to determine whether adjustments to the qualifying diagnoses need to be made due to advances in science.

You do not have to be a cynic to know it is highly unlikely the NFL will voluntarily reopen the resolution of CTE cases relative to the settlement agreement. Probably the only way that will happen is if a court forces that.

I remain a football fan but I would acknowledge the nasty underside of the NFL. There is a litany of sins but I think its treatment of retired, injured players is probably the worst. Someone should write a book looking into the health issues of all the journeymen ex-players who were chewed up and spit out. Most players were not stars leading enchanted lives. It would be good to know how they are faring years after leaving the game. I think we have a very limited picture of that. I expect there is a wealth of material there.

It remains to be seen whether Judge Brody or the Third Circuit will allow the exclusion of CTE from the settlement agreement which lasts 65 years.

Relative to The Donald…- posted 8/8/2015

August 8, 2015 1 comment

After hearing Donald Trump’s comments regarding Megyn Kelly, the Fox news anchor, after the first Republican debate, I am reminded of this quote which struck me as particularly apropos:

“I am ugly but I can buy for myself the most beautiful of women. Therefore I am not ugly, for the effects of ugliness – its deterrent power – is nullified by money…I am bad, dishonest, unscrupulous, stupid; but money is honored, and hence its possessor…I am brainless, but money is the real brain of all things and how then should its possessor be brainless? Besides, he can buy clever people for himself…Does not all my money, therefore, transform all my incapacities into their contrary?” Karl Marx

The Witch Hunt Against Planned Parenthood – posted 8/2/2015 and published in the Concord Monitor on 8/5/2015

August 3, 2015 2 comments

This piece appeared in the Concord Monitor on 8/5/2015.

Planned Parenthood is under siege. Long-term opponents have been working overtime to try and create a witch hunt atmosphere in an attempt to take down the organization. What is going on is a creepy form of McCarthyism based on maliciously edited videos. The videos have been edited to make it look like Planned Parenthood is profiting from selling fetal body parts.

I have been surprised that the media has treated this story as credible. Usually, there is an expectation of evidence behind a story. The concept of evidence implies some degree of reliability and authenticity.

In this instance, we have a group of zero credibility (the Center for Medical Progress, the group behind the videos) which falsely presented itself to Planned Parenthood employees over the course of three years in an attempt to get a gotcha moment. They then doctored the videos to manufacture wrongdoing and create a misleading impression. I would point out that the Center for Medical Progress, humorously named, had no online presence until a few weeks ago. Some of the actors involved have a long history with deceptively editing undercover footage of abortion clinics.

The news cycle becomes slow during the summer but this smear campaign doesn’t deserve the heading “news”. It is less newsworthy than shark bite stories.

The accusation that Planned Parenthood is illegally selling fetal body organs and tissue is patently false. Women, who have abortions, which is a legal medical procedure, can, in some states, donate fetal tissue to research if they choose to do that. That does not happen at Planned Parenthood centers in New Hampshire.

I would note that donating fetal tissues to scientific researchers can help contribute to our understanding of Parkinson’s, diabetes, muscular dystrophy, and eye diseases. Scientists at universities and at government labs have been using fetal tissues for many years. On July 28, the New York Times provided much more detail about the value of this scientific work. As the Monitor pointed out in its recent editorial, those Planned Parenthood affiliates in other parts of the country do not profit from donations of fetal tissue. The money Planned Parenthood receives only recoups the costs of collecting and preserving it and sending it to researchers.

Less reported than the videos has been the recent breach of Planned Parenthood’s employee database. Anti-abortion hackers who have the announced intention of decrypting and releasing personally identifiable information are behind this. Given the track record of the pro-life movement, I have to say this is scary.

Whatever the innocence of many in the pro-life movement, there is a dangerous minority of anti-abortion fanatics who want to stop at nothing to obtain their goal of shutting down Planned Parenthood. Planned Parenthood employees have a perfect right to be concerned and frightened. The extreme element of the anti-abortion movement has killed abortion providers. Dr. Tiller and Dr. Slepian come immediately to mind. The mainstream of the anti-abortion movement says precious little about its crazies. Maybe they are scared of them too.

The intent of releasing personally identifiable information is about harassment. Part of the strategy of the extreme sector of the anti-abortion movement has been threatening and stalking abortion providers. It is hard to know what these fanatics will do but past history is not reassuring.

I believe the story of vigilante action against abortion providers has been underreported. For those who doubt what I am saying, I would recommend the book Living in the Crosshairs by David Cohen and Krysten Connon. The authors document how every day men and women who are associated with abortion care are harassed, threatened, stalked, picketed, sent hate mail and terrorized.

I think this is a more worthy news story than the transparently phony videos devised by fanatics.

The blogger Rebecca Watson who blogs at persuasively compares the Planned Parenthood video story to other examples of alleged heresy. I think of the blood libel against the Jews and the persecution of witches. Begin with a fake story, add hysteria (and social media) and voila – you have the recipe for a debacle.

Facts get lost along the way. In considering Planned Parenthood, we should remember that it provides health care, education and outreach to more than five million women, men, and adolescents. Nationwide only 3% of Planned Parenthood’s services are abortion-related. More than 90% of the abortion services are for first trimester abortions.

Planned Parenthood performed 400,000 pap tests and 500,000 breast exams. These services are critical for detecting cancer. It also has provided 4.5 million tests and treatments for sexually transmitted infections.

As a non-profit, Planned Parenthood has been a critical provider insuring poor women have access to basic medical care including birth control. Contraception accounts for 34% of its services. It is estimated that the work of Planned Parenthood prevents 516,000 unintended pregnancies a year.

There is an irony in the attacks on Planned Parenthood. Through its sex education efforts and its promotion and distribution of birth control, it has done more to prevent abortions than anybody.

Planned Parenthood has been around almost 100 years. It will not be as easy to take down as say, ACORN. It is the largest provider of reproductive services in the Unites States with over 700 locations. Historically, attacks are nothing new. When Margaret Sanger, her sister and another woman founded the first American birth control clinic in Brooklyn, they were arrested and jailed for violating the Comstock Act. Then the accusation was distributing obscene materials. That conviction was overturned.

I have come to believe that “pro-life” is really a misnomer for the anti-abortion movement. More correctly, I think it should be identified as “pro-birth”. A quote from Sister Joan Chittister makes the point:

“I do not believe that just because you’re opposed to abortion, that makes you pro-life. In fact, I think in many cases your morality is deeply lacking if all you want is a child born but not a child fed, a child educated, not a child housed. And why would I think you don’t?” Because you don’t want any tax money to go there. That’s not pro-life. That’s pro-birth. We need a much broader conversation what the morality of pro-life is.”

The extreme right wing jihad against Planned Parenthood is disturbingly irrational. We now have 18 male House Republicans signing a letter committing to shutting down the federal government if Planned Parenthood is not defunded. In New Hampshire, the Executive Council is voting this week on Planned Parenthood’s state contracts. After the 2008 and 2012 national election defeats, I would have thought the national Republican party would have reconsidered whether attacking Planned Parenthood and denying women access to reproductive health was wise strategy.

I guess the war on women is not dead.


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