How a Top Chicken Company Cut Off Black Farmers, One by One

The Trump administration has weakened legal protections for farmers and eased off enforcing rules on powerful meat companies.

by Isaac Arnsdorf

After years of working as a sheriff’s deputy and a car dealership manager, John Ingrum used his savings to buy a farm some 50 miles east of Jackson, Mississippi. He planned to raise horses on the land and leave the property to his son.

John Ingrum lost his farm after chicken processor Koch Foods stopped delivering flocks for him to grow. “They put me slap out of business,” he said.

The farm, named Lovin’ Acres, came with a few chicken houses, which didn’t really interest Ingrum. But then a man showed up from Koch Foods, the country’s fifth-largest poultry processor and one of the main chicken companies in Mississippi. Koch Foods would deliver flocks and feed — all Ingrum would have to do is house the chicks for a few weeks while they grew big enough to slaughter. The company representative wowed Ingrum with projections for the stream of income he could earn, Ingrum recalled in an interview.

What Ingrum didn’t know was that those financial projections overlooked many realities of modern farming in the U.S., where much of the country’s agricultural output is controlled by a handful of giant companies. The numbers didn’t reflect the debt he might have to incur to configure his chicken houses to the company’s specifications. Nor did they reflect the risk that the chicks could show up sick or dead, or that the company could simply stop delivering flocks.

And that growing concentration of corporate power in agriculture would only add to the long odds Ingrum, as a black farmer, faced in the United States, where just 1.3% of the country’s farmers are black.

The shadow of slavery, sharecropping, and Jim Crow has left black farmers in an especially precarious position. Their farms tend to be smaller and their sales lower than the national average, according to data from the U.S. Department of Agriculture. While white farmers benefited from government assistance such as the Homestead Act and land-grant universities, black farmers were largely excluded from owning land and accumulating wealth. In recent decades, black farmers accused the USDA of discriminating against them by denying them loans or forcing them to wait longer, resulting in a class-action lawsuit that settled for more than $1 billion.

Along with these historical disadvantages, black farmers say they have also encountered bias in dealing with some of the corporate giants that control their livelihood. In complaints filed with the USDA between 2010 and 2015, Ingrum and another black farmer in Mississippi said Koch Foods discriminated against them and used its market control to drive them out of business.

After the complaints by the farmers, an investigator for the USDA, which is responsible for regulating the industry, looked into Koch Foods’ dealings with those farmers and found “evidence of unjust discrimination,” according to a 700-page case file obtained by ProPublica. The investigator concluded that Koch Foods violated a law governing meat companies’ business practices.

The Trump administration has cut back on enforcing this law, with the USDA now conducting fewer investigations and imposing fewer fines, as ProPublica has reported. Koch Foods hasn’t faced any penalty.

Koch Foods declined to provide an interview with any of its executives or to answer detailed questions about its dealings with black farmers in Mississippi. A lawyer for the company said it denies wrongdoing.

The five largest chicken companies now make up 61% of the market, compared with 34% in the hands of the top four firms in 1986. As the biggest companies expanded their control, they raised farmers’ average pay by a mere 2.5 cents a pound from 1988 to 2016, while the wholesale price of chicken rose by 17.4 cents a pound, according to data from the USDA and the National Chicken Council.

Mississippi is the country’s fifth-largest poultry-producing state. From 2009 to 2017, one of the main chicken companies, Koch Foods, went from having contracts with four black farmers in Mississippi to zero.

Mississippi is the fifth-largest poultry-producing state, with more than 1,300 chicken farms. In a state where the population is 38% black, only 96 of those farms were operated by African Americans in 2012, the most recent USDA data available. From 2009 to 2017, Koch Foods went from having contracts with four black farmers in Mississippi to zero.

Koch (pronounced “cook”) Foods is based outside Chicago and supplies chicken, often sold under other brands, to major restaurants and retailers such as Burger King, Kroger and Walmart. The company, which is privately held, is not part of the business empire of the conservative billionaires Charles Koch and David Koch. The owner of Koch Foods, Joseph Grendys, has a fortune that Forbes estimates at $3.1 billion.

After Ingrum signed his contract to grow chickens for Koch Foods, in 2002, different company representatives kept coming with lists of expensive modifications they wanted Ingrum to make, according to an affidavit he provided to the USDA investigator. After Ingrum met all the specifications, the next representative went back on what the previous one said and wanted things done a different way, Ingrum said in the affidavit.

Chicken companies usually say they update their specifications to improve animal welfare or respond to consumer preferences like avoiding antibiotics. But Ingrum couldn’t find much logic in the changes Koch Foods wanted him to make. One service technician directed Ingrum to install lights in one place, the next one someplace else. Another time, the company wanted Ingrum to move a power line, even though it was out of the way of the feed trucks and bins. That cost him $6,000.

Under Ingrum’s contract with Koch Foods, the company supplied the flocks and feed but penalized him if his birds were sick or underfed.

According to Ingrum’s affidavit, when he met with a manager about the shifting demands, the manager said, derisively, “I had a couple of y’all when I was at Sanderson,” another big chicken company. Ingrum asked the manager, who was white, what he meant by that. The manager didn’t answer Ingrum. Reached by ProPublica on his cellphone, the manager hung up.

Ingrum suspected that the truck drivers who delivered feed were shortchanging him, so he installed sensors to alert him when the drivers arrived. In 2007, according to his affidavit, Ingrum caught a driver failing to fill a whole feed bin. The company brushed it off as an honest mistake. But Ingrum had heard of drivers asking farmers for payoffs to get more feed, according to the affidavit.

In 2009, Ingrum spent $50,000 on renovations that Koch wanted. Then the company wanted Ingrum to rebuild his compost shed. That was another $5,000. Then Koch Foods said the shed had to be certified by a government inspector. Ingrum called the agency, which said the shed didn’t require approval and they only sent an inspector out once a year.

With Koch Foods delivering flocks to Ingrum’s farm less frequently than expected, he was making less money and falling behind on his loan payments. He looked into selling his farm. When a prospective buyer from Florida called Koch to inquire about a contract with them, a Koch employee scared him off by saying Ingrum’s farm needed $100,000 in repairs, according to Ingrum’s affidavit. The employee also swore at Ingrum’s real estate agent and spread a rumor that the bank had foreclosed, according to the affidavit. That wasn’t true, but it was becoming increasingly hard to avoid.

In 2010, Ingrum heard that the Obama administration was making a push to help farmers who were getting squeezed by consolidation in agriculture. Attorney General Eric Holder and Agriculture Secretary Tom Vilsack were going around the country to hear from farmers about the problems in their markets. When they came to neighboring Alabama to meet with chicken farmers, Ingrum went and spoke on a panel.

At the hearing, Ingrum recounted how the company would pay him less if the birds were sick or underfed, even though the company supplied the chicks and the feed. Ingrum said he’d received a tray of 100 chicks with 35 to 40 already dead. Another time, he ran out of feed for three days and the chickens started eating one another.

“There’s no way it could be fair,” he said at the hearing, according to the transcript. “I had no control over the feed that they brought me.”

Companies typically say they want their farmers’ chicken houses to meet certain specifications to improve animal welfare or respond to consumer preferences. But Ingrum couldn’t find much logic in the costly changes Koch Foods wanted him to make.

That night, when Ingrum returned home to Lovin’ Acres Farm, he found a note from Koch Foods saying his contract had expired.

The USDA investigator later inquired whether it was “solely a coincidence” that Koch Foods left the note at Ingrum’s farm on the same day he attended the hearing 300 miles away. A company supervisor said he “could not say.”

“I never got another chicken after going to that meeting over there in Alabama,” Ingrum, 55, said in an interview. “They put me slap out of business.”

As Ingrum ran out of money, the power company cut his electricity, but he refused to leave for three months. His former colleagues at the sheriff’s office had to come remove him. For the next five years, he stayed with relatives until he scraped together enough money from working at a car dealership to get back on his feet.

“Twenty years, everything I worked for, I lost it in one summer,” Ingrum said. “It just ruined me.”

Around the same time, two other black farmers in the area also stopped growing chickens for Koch Foods. Out of 173 chicken farmers under contract with Koch Foods in Mississippi, there was only one African American left. His name was Carlton Sanders.

Ingrum said he warned Sanders: “They’re coming after you, Carlton. You next.”

Sanders’ farm was in a nearby town called Lena. He had been in the business since 1992. Back then, he worked with a local family business called BC Rogers, which he said always treated him professionally. He used the chicken manure to fertilize his vegetable garden, and he took pride in his trees growing figs, pears and apricots. “I just had everything set,” Sanders said.

When Koch Foods bought BC Rogers in 2001, everything changed, Sanders said. Sanders’ performance was above average, according to the ranking system that the company used to pay farmers. But he felt singled out for disadvantages.

“I’ve never been treated like that by anybody,” Sanders, 63, said. “It was just like I was in hell with them.”

Carlton Sanders on his front porch before church. Sanders was the last black farmer under contract with Koch Foods in Mississippi, until the company gave him a list of expensive renovations that no other farmer received.

In 2014, Koch Foods wanted Sanders to make $105,000 worth of improvements, according to the USDA case file. Then Sanders borrowed an additional $93,000 to buy new curtains, insulation, cables and heaters. Suddenly, he owed a total of $295,000, but he made his payments on time, according to financial records reviewed by ProPublica.

The next year, Koch Foods informed its farmers of a new requirement for the ventilation in their chicken houses. Sanders went to his bank to see about another loan. The loan officer called the manager at Koch Foods and sent a follow-up email asking for “a listing of needed improvements that Koch Foods is requiring.”

The manager never responded directly to the banker. Instead, the company gave Sanders an “update list” with 23 items. Sanders gave the list to his banker, who understood it to be the company’s response to his inquiry. Sanders obtained work estimates for the 23 updates, amounting to $318,000, according to the case file.

The banker advised Sanders not to apply for another loan and to consider selling his farm instead. Meanwhile, Koch Foods stopped giving Sanders chickens to raise.

Sanders asked around and realized other farmers hadn’t gotten the same 23-item “update list.” So in December 2015, he filed a complaint with the USDA.

The complaint was assigned to a government attorney in Atlanta named Wayne Basford. Basford had also looked into Ingrum’s case, stretching back to 2010. Over the years, Basford had collected affidavits attesting to Koch employees’ calling black farmers “niggers” (the employees denied it), and he observed that the office staff was all white. He also noted that the Equal Employment Opportunity Commission was suing Koch Foods, alleging sexual harassment, retaliation and discrimination against Hispanic employees in Mississippi. (The company later paid $3.75 million to settle the lawsuit, though it did not admit wrongdoing.)

In February 2016, Basford notified Koch Foods that he was investigating a new complaint he’d received, without mentioning Sanders. Koch Foods’ lawyer responded by criticizing the condition of Sanders’ farm and, at the same time, denying that the company asks farmers to make “upgrades.”

As Basford inquired about the 23-item “update list” that only Sanders received, Koch Foods said these were optional. The list used the word “must” six times and never said the updates were voluntary.

“I hate to say it, but they just don’t like black people,” Sanders said. “There are no black people in the office — they don’t even want black people cleaning up after them.”

Basford asked to schedule a meeting with Koch Foods’ executives to present his findings. The company’s lawyer, Scott Pedigo, of the firm Baker Donelson in Jackson, Mississippi, called Basford to suggest meeting with local managers instead, according to emails included in the case file. Basford insisted on speaking with the top executives “due to the potential gravity of the situation.”

In July 2017, Basford and two colleagues from the USDA met in Birmingham, Alabama, with Koch Foods’ chief operating officer, Mark Kaminsky, along with two other executives and Pedigo. Grendys, Koch Foods’ billionaire owner, did not attend, but Basford sent Grendys a copy of his slides.

In the presentation, Basford said Koch Foods’ actions toward Sanders, combined with its treatment of Ingrum and the other black farmers, was “evidence of unjust discrimination.” Chicken companies are prohibited from engaging in “unfair, unjustly discriminatory or deceptive” business practices under the Packers and Stockyards Act of 1921. The Obama administration tried to tighten enforcement of this law by proposing new regulations to spell out what those prohibited practices are. But the meat industry lobbied Congress to block the proposed rules by withholding funding from the USDA. When the Trump administration came in, it swiftly prevented the rules from taking effect.

So when Basford presented his findings to the Koch Foods executives in July 2017, he included all the evidence of discrimination, but he alleged a narrower violation: that Koch Foods failed to notify Sanders of why it stopped delivering chickens to his farm. In response, Pedigo argued that the notification nine months earlier about the new ventilation requirement was enough.

A chicken house on the farm that Sanders lost.

The notice requirement had been strengthened by the Obama administration, but Congress reversed the change in 2015. That made it harder for Basford’s case to stick.

Basford, who declined to comment for this article, submitted the case for the USDA’s lawyers to evaluate possible next steps, such as seeking a fine against Koch Foods. The agency hasn’t taken any action so far. A USDA spokesman said the investigation is “ongoing” and the agency is coordinating with the Department of Justice.

Meanwhile, Basford tried to mediate between Koch Foods and Sanders. In the months following Basford’s presentation in 2017, he pushed Koch Foods to resume delivering chickens to Sanders’ farm so that Sanders could save it from foreclosure.

Pedigo responded with a list of 10 repairs that Sanders would have to make first. Seven were among the 23 fixes that the company had previously insisted were optional.

Basford wanted Koch Foods to assure Sanders that if he spent the money to make the latest repairs, the company would start bringing him chickens again. The company wouldn’t agree.

In the end, all Koch Foods agreed to was “reviewing its policies and programs.” Pedigo told Basford the company has a “commitment to treating all of its independent contract growers equally and with dignity and respect.”

In response to questions from ProPublica about Ingrum and Sanders, Pedigo declined to comment on the specific allegations in Basford’s investigation. In a statement, he said, “Koch Foods applies its standards and expectations to all growers uniformly without regard to race or any other protected status and has never discriminated against any grower on such basis.”

Kaminsky, the Koch Foods COO who attended Basford’s presentation, last October became chairman of the National Chicken Council, the industry’s trade group.

Koch Foods and other top chicken companies — Tyson Foods, Pilgrim’s Pride, Sanderson Farms and Perdue Farms — are fighting multiple lawsuits from retailers, distributors and farmers accusing them of conspiring to fix prices. The companies have denied the allegations. In one of the cases, the Justice Department’s Antitrust Division asked the judge on June 21 to freeze discovery in order to protect an ongoing criminal investigation.

The USDA is now doing fewer investigations like Basford’s. His office finished 1,873 investigations in 2017, the most recent data available, down from 2,588 in 2012. Penalties for violating the Packers and Stockyards Act dropped from $3.2 million in 2013 to as little as $243,850 in 2018, according to preliminary case data on the USDA’s website.

The enforcement office, known as the Grain Inspection, Packers and Stockyards Administration, or GIPSA, was dissolved as part of a department-wide reorganization. The USDA shifted responsibility for enforcing the Packers and Stockyards Act into another division whose primary purpose is helping companies boost sales. The staff in the Packers and Stockyards Division has decreased to 137 from 166 in 2010.

Sanders is living on food stamps and whatever he gets from hunting and fishing.

Sanders found himself in a downward spiral after the dispute with Koch Foods. He had a stroke and a heart attack. The bank foreclosed on his farm and he filed for bankruptcy. His wife left him. These days, he’s living on food stamps plus whatever he gets from hunting and fishing.

“I’ve been about as dead as somebody can go without being dead,” he said. “I’m trying to hold my head up, that’s all I can do.”

On Sundays, Sanders passes by his old farm on his way to church. The farm is just sitting there, still up for sale, lying fallow. Sometimes, he takes a long way around to avoid seeing it.


Republished with permission under license from ProPublica.

 

Police Report Deems Firing 55 Shots In 3.5 Seconds At A Sleeping Black Man “Reasonable”

Editorial note by Randall Hill

On February 9, 2019, six white police officers shot and killed, Willie McCoy, a black 20-year-old aspiring rapper who fell asleep in the drive-thru lane of a Taco Bell. Police body cam footage of the shooting is below.

These videos, unfortunately, are becoming so numerous, it's hard keeping up. Just days ago, Phoenix police threatened to kill a pregnant woman because her 4-year-old daughter walked out of a Family Dollar store with a 99 cent doll.  It's way past the point of misunderstandings and cops fearing for their lives. It's almost as a racist faction of police have declared warfare on the black community. I understand policing is a dangerous job, it ranks 18 out of the 25 most dangerous occupations in the U.S., however, having an encounter with police while being black is feeling pretty dangerous too!

Since today is Father's Day, I wasn't planning on posting anything, but then I learned about this situation which instantly reminded me of my youngest son. He is a twenty-year-old college student, aspiring singer/rapper and a former member of the group ProjecX, the first youth group to perform at Twilight Tuesdays. He released his first album earlier this year and will be releasing his first music video soon. 

I'm waiting to hear some sort of response from Taco Bell or Yum Brands which owns them. This young black man was killed while being a customer and if Taco Bell doesn't speak out against this senseless act, I'm done with them and possibly all the Yum brands. As we stated previously, only economic sanctions will change this. See: "Where Protest Fails, Violence Prevails" and "Protest Minus Disruption or Violence Equals Failure".

My thoughts and prayers go out to the family and friends of Willie McCoy. As President Obama said about Trayvon Martin, "Willie McCoy" could have been my son.

Article by Abby Zimet

The choice by six crazed racist cops to pump 55 shots into Willie McCoy, a 20-year-old Bay Area rapper, for the crime of falling asleep in his car at a Taco Bell was "reasonable," argues a newly released report by a paid "expert" and former cop who called the gruesome killing "in line with contemporary training and police practices” – which is the damn problem, say many Americans weary of dead black bodies in the streets. The Vallejo police officers turned up last February for – bitter irony alert – "a wellness check" after a worried Taco Bell employee called to say there was an unresponsive man in his car in the drive-through lane. Police found McCoy asleep at the steering wheel with a gun in his lap. Inexplicably for officers of the law supposedly trained to serve and protect and think on their feet, it evidently didn't occur to them to do a normal human thing like try and wake McCoy by honking or shining lights at him, perhaps from a safe distance in case he was startled. Instead, they took the gun narrative, and ran with it: They reported "a confrontation with an armed man," said they "gave loud verbal commands" McCoy didn't follow, and were forced to fire out of “fear for their own safety” after McCoy reached for his gun.

In fact, body-camera footage released following pressure from the family and the community showed McCoy sound asleep for several minutes as officers frantically pointed guns at his head; it also revealed police remarking McCoy's gun didn't have a magazine in it, one cop bragging, “I’m going to pull him out and snatch his ass," and McCoy simply, slightly stirring in his sleep to scratch his arm before the explosion of gunfire – 55 shots in 3.5 seconds. He was reportedly hit about 25 times; his family said he was unrecognizable, his face, chest, throat, arms, and body riddled with bullets in an “execution by firing squad.” The family's attorney John Burris used the same term, adding, "This young man was shot to pieces." Another attorney: Police wanted “to ensure that this human being does not survive.” “They killed him in his sleep,” charged his cousin David Harrison after seeing the footage. “He scratched his arm…and they murdered him." As a black man in a town with a long ugly history of police brutality, racism, and misconduct, this was not Harrison's first rodeo: McCoy was the 16th person to die at the hands of Vallejo cops since 2011 – the highest rate of police killings per capita in Northern California, resulting in the second highest rate of civil rights lawsuit settlements. Says Harrison, "We're being slaughtered in the streets."

McCoy's murder for sleeping while black sparked yet more outrage in the community. There have been angry protests, city council meetings, hashtags – #JusticeForWillieMcCoy –  calls for Attorney General Xavier Becerra to step in, lobbying by the ACLU and other advocacy groups for passage of #AB392 to legally limit the use of deadly force, and plans by city officials to have federal mediators meet with residents to create a "community engagement plan" for police accountability – a vague genteel idea that left the community unimpressed and the work undone. Fumed McCoy family attorney Melissa Nold, "We don't have a PR problem – we have a violence problem." Meanwhile, despite the fiery declaration at one rally that, "The usual way of doing business is over," abuses by Vallejo cops are ongoing. One of the officers who killed McCoy was sued  in 2013 by the family of a (black) teenager after he threatened to kill the boy and directed his police dog to repeatedly maul him; another officer is being sued for shooting seven times and killing an unarmed (black) man after stopping him for having no light on his bike. And all six officers who gunned down McCoy – those two and four more – returned to duty three weeks after the shooting.

The 51-page, $8,000 garbage report released this week will do little – actually, nothing – to quell the fury. It was compiled by David Blake, an “expert” and retired BART police officer known to advocates – “He gets paid to defend police when they shoot people" – who also investigated the 2018 killing of Stephon Clark, an unarmed 22-year-old killed in his backyard when cops mistook his cellphone for a gun; Blake found no police culpability. This time, he essentially found the police kinda screwed up but you gotta excuse them because of "acute stress" from having this guy asleep in his car and “chaos caused by the sounds of gunfire, debris, and weapons mounted lights reflecting off the shattered windshield” and naturally these poor cops "experienced a significant hypothalamic-pituitary-adrenal response from proximal gunfire" and really they showed restraint by only firing 55 shots and not emptying their clips despite training to "fire until the threat has been neutralized,” which “indicates a level of self-control.” His conclusion: The killing was “in line with contemporary training and police practices associated with use of deadly force…I opine the 55 rounds fired by 6 officers in 3.5 seconds is reasonable based upon my training and experience as a range instructor as well as through applied human factors psychology.” “Each bullet has to be justified,” said attorney Melissa Nold, in order to buttress the belief that "officers should be able to act on their irrational fear and unlawfully kill people."


Republished with permission under license from Common Dreams.

You Can Now Search the Full Text of 3 Million Nonprofit Tax Records for Free

Search the full text of nearly 3 million nonprofit IRS filings, including investments and grants given to other nonprofits.

by Ken Schwencke

On Thursday, ProPublica launched a new feature for our Nonprofit Explorer database: The ability to search the full text of nearly 3 million electronically filed nonprofit tax filings sent to the IRS since 2011.

Nonprofit Explorer already lets researchers, reporters and the general public search for tax information from more than 1.8 million nonprofit organizations in the United States, as well as allowing users to search for the names of key employees and directors of organizations.

Now, users of our free database can dig deep and search for text that appears anywhere in a nonprofit’s tax records, as long as those records were filed digitally — which according to the IRS covers about two-thirds of nonprofit tax filings in recent years.

How can this be useful to you? For one, this feature lets you find organizations that gave grants to other nonprofits. Any nonprofit that gives grants to another must list those grants on its tax forms — meaning that you can research a nonprofit’s funding by using our search. A search for “ProPublica,” for example, will bring up dozens of foundations that have given us grants to fund our reporting (as well as a few filings that reference Nonprofit Explorer itself).

Just another example: When private foundations have investments or ownership interest in for-profit companies, they have to list those on their tax filings as well. If you want to research which foundations have investments in a company like ExxonMobil, for example, you can simply search for the company name and check which organizations list it as an investment.

The possibilities are nearly limitless. You can search for the names or addresses of independent contractors that made more than $100,000 from a nonprofit, you can search for addresses, keywords in mission statements or descriptions of accomplishments. You can even use advanced search operators, so for instance you can find any filing that mentions either “The New York Times,” “nytimes” or “nytimes.com” in one search.

The new feature contains every electronically filed Form 990, 990-PF and 990-EZ released by the IRS from 2011 to date. That’s nearly 3 million filings. The search does not include forms filed on paper.

So please, give this search a spin. If you write a story using information from this search, or you come across bugs or problems, drop ProPublica a line! They’re excited to see what you all do with this new superpower.


Republished with permission under license from ProPublica, a Pulitzer Prize-winning investigative newsroom. 

Protecting your child, lessons from “When They See Us”

By Randall Hill

I recently finished, Ava DuVernay's "When They See Us" a four-part mini-series on Netflix that tells the story of the Central Park 5; five black and brown teenage boys who were wrongly convicted of raping a white woman and spent between 6 to 14 years in prison. If you have not yet seen this movie, I highly recommend that you do. The trailer for "When They See Us" is below. 

The film drives homes what can happen when a person doesn't know their rights or how to exercise them. Ironically, the mother of Yusef Salaam understood her son's rights and took the right steps to protect him, however, lack of knowledge of the other parents resulted in Yusef going to jail with the others.

"When They See Us" provides lessons about our criminal justice system that all African-Americans need to be aware of. If you're a black parent, watch it with your kids or at least make sure they see the series as part of their education about the U.S. justice system. Ava DuVernay discussed the film and the criminal justice system with Trevor Noah in the video below:

Children in juvenile court proceedings do not enjoy the same constitutional rights as adults. Prior to the civil rights era in the 1960s, juveniles had few due process rights at all.

The U.S. Supreme Court held that there’s no jury-trial right in juvenile delinquency proceedings. (McKeiver v. Pennsylvania, 403 U.S. 528 (1971).) However, minors tried in adult systems are entitled to juries.

A child’s statements to police can be used against them in court proceedings, however, only when the statements are voluntary and given freely. The government may not coerce confessions, as provided by the Fifth Amendment privilege against self-incrimination and the due-process prohibition against admitting involuntary confessions into court. However, forced confessions are not easy to prove. Parents need to teach their children not to say anything to police without a parent or attorney present.

The U.S. Supreme Court has ruled that police can use deception and are allowed to falsely claim that a friend or acquaintance has confessed or implicated someone when in fact he/she had not (Frazier v. Cupp, 1969). The police can claim to have found a suspect's fingerprints at a crime scene when there were none (Oregon v. Mathiason, 1977), determining such acts insufficient for rendering the defendant's confession inadmissible. State courts have permitted police to deceive suspects about a range of factual matters, including, for example, falsely stating that incriminating DNA evidence and satellite photography of the crime scene exist (State v. Nightingale, 2012).

Children need to be trained on how to respond when stopped or detained by police. Police officers must have probable cause to search and arrest a minor who is suspected of violating a criminal statute. Minors like adults have the right to remain silent and are not required to answer questions. There are exceptions 

  • In some states, you must provide your name to law enforcement officers if you are stopped and told to identify yourself. But even if you give your name, you are not required to answer other questions.
  • If you are driving and you are pulled over for a traffic violation, the officer can require you to show your license, vehicle registration and proof of insurance (but you do not have to answer questions).
  • Even if you have already answered some questions, you can refuse to answer other questions until you have a lawyer.
  • Keep in mind that lying to a government official is a crime but remaining silent until you consult with a lawyer is not.

Reverse Miranda

When my sons were minors, I required them to keep a reverse Miranda card in their wallets that stated the following:

To: Any agent, law enforcement officer, or representative of the government 

My Name is: X Hill – I am a minor child, following my parent’s instructions.

If you have been presented with this, then you have detained me against my will. I wish to be released at once. If you believe you have a legal reason for still holding me, then it must be for one of two reasons: 

1. You believe I have information relevant to a case or investigation and need my assistance. I am happy to comply and will in no way obstruct justice. Simply type up your questions and contact my parent/s (R or C Hill 314-xxx-xxxx). Upon review by them and any attorney they so choose, I will answer any and all that they and their attorney advise me to. Please do not argue about this, or it will delay the investigation, and neither of us wants that. 

2. You believe that I have committed a crime. I want to speak with my parent/s and/or the attorney they provide me and do not wish to answer any questions or make any statement until I do. You may contact my parents at 314-xxx-xxxx, alternate contact, grandmother 314-xxx-xxxx

While doing those things, please see to it that I am given food, drink, and bathroom breaks frequently, as I will not ask. Please do not ask that I fill out, sign, initial, check off, or in any way mark anything for any reason. I have been forbidden to do this by my parent/s until they and/or their attorney, can review any such documents. 

Finally, please do not interpret my silence as rudeness, guilt, retardation or anything else but what it is – obedience to my parent/s and their attorney. 

Prison Industrial Complex

Locking up prisoners is big business. The three largest private prison corporations CoreCivic, formerly the Corrections Corporation of America (CCA), Geo Group, and MTC take in $5 billion in revenue a year. If you bank with Wells Fargo, Bank of America, JP Morgan Chase, BNP, and U.S. Bancorp, you may have helped finance private prisons.

In addition to private prisons, there are corporations that contract cheap prison labor, construction companies, surveillance technology vendors, companies that operate prison food services and medical facilities, prison guard unions, phone companies, private probation companies, lawyers, and lobby groups that represent them. "The Prison Industrial Complex: Mapping Private Sector Players” exposes over 3,900 companies profiting off mass incarceration.

Private prison inmates earn as little as 17 cents per hour. Companies including: IBM, Boeing, Motorola, Microsoft, AT&T, Wireless, Texas Instrument, Dell, Compaq, Honeywell, Hewlett-Packard, Nortel, Lucent Technologies, 3Com, Intel, Northern Telecom, Nordstrom’s, Revlon, Macy’s, Pierre Cardin, Target Stores, and many more have profited from prison labor.

It Begins Early

School districts thru zero tolerance policies often trap disadvantaged kids in the school to prison pipeline that can unfairly introduce them into the criminal justice system. Black students, in particular, are more likely to be arrested in school for minor behavior issues. 

When my youngest son was in grade school, the principal shared some startling information, the number of prisons built are based on third-grade reading scores. This is supposed to be an urban myth, however, test scores are used to make some predictions. During my son's freshman year in high school, I had to appeal an excessive penalty for horseplay.  

You owe it to yourself and your children to use Court.rchp.com and other resources to educate yourself about the law and our legal system. As "When They See Us" demonstrated, we're only as strong as our weakest link.

The racist roots of American policing: From slave patrols to traffic stops

By Connie Hassett-Walker, Kean University

Outrage over racial profiling and the killing of African Americans by police officers and vigilantes in recent years helped give rise to the Black Lives Matter movement.

But tensions between the police and black communities are nothing new.

A new slogan for an old problem. Photo/Lynne Sladky

There are many precedents to the Ferguson, Missouri protests that ushered in the Black Lives Matter movement. Those protests erupted in 2014 after a police officer shot unarmed 18-year-old Michael Brown; the officer was subsequently not indicted.

The precedents include the Los Angeles riots that broke out after the 1992 acquittal of police officers for beating Rodney King. Those riots happened nearly three decades after the 1965 Watts riots, which began with Marquette Frye, an African American, being pulled over for suspected drunk driving and roughed up by the police for resisting arrest.

I’m a criminal justice researcher who often focuses on issues of race, class and crime. Through my research and from teaching a course on diversity in criminal justice, I have come to see how the roots of racism in American policing – first planted centuries ago – have not yet been fully purged.

Slave patrols

There are two historical narratives about the origins of American law enforcement.

Policing in southern slave-holding states had roots in slave patrols, squadrons made up of white volunteers empowered to use vigilante tactics to enforce laws related to slavery. They located and returned enslaved people who had escaped, crushed uprisings led by enslaved people and punished enslaved workers found or believed to have violated plantation rules.

The first slave patrols arose in South Carolina in the early 1700s. As University of Georgia social work professor Michael A. Robinson has written, by the time John Adams became the second U.S. president, every state that had not yet abolished slavery had them.

Members of slave patrols could forcefully enter anyone’s home, regardless of their race or ethnicity, based on suspicions that they were sheltering people who had escaped bondage.

The more commonly known precursors to modern law enforcement were centralized municipal police departments that began to form in the early 19th century, beginning in Boston and soon cropping up in New York City, Albany, Chicago, Philadelphia and elsewhere.

The first police forces were overwhelmingly white, male and more focused on responding to disorder than crime.

As Eastern Kentucky University criminologist Gary Potter explains, officers were expected to control a “dangerous underclass” that included African Americans, immigrants and the poor. Through the early 20th century, there were few standards for hiring or training officers.

Police corruption and violence – particularly against vulnerable people – were commonplace during the early 1900s. Additionally, the few African Americans who joined police forces were often assigned to black neighborhoods and faced discrimination on the job. In my opinion, these factors – controlling disorder, lack of adequate police training, lack of nonwhite officers and slave patrol origins – are among the forerunners of modern-day police brutality against African Americans.

Jim Crow laws

Slave patrols formally dissolved after the Civil War ended. But formerly enslaved people saw little relief from racist government policies as they promptly became subject to Black Codes.

For the next three years, these new laws specified how, when and where African Americans could work and how much they would be paid. They also restricted black voting rights, dictated how and where African Americans could travel and limited where they could live.

The ratification of the 14th Amendment in 1868 quickly made the Black Codes illegal by giving formerly enslaved blacks equal protection of laws through the Constitution. But within two decades, Jim Crow laws aimed at subjugating African Americans and denying their civil rights were enacted across southern and some northern states, replacing the Black Codes.

For about 80 years, Jim Crow laws mandated separate public spaces for blacks and whites, such as schools, libraries, water fountains and restaurants – and enforcing them was part of the police’s job. Blacks who broke laws or violated social norms often endured police brutality.

Meanwhile, the authorities didn’t punish the perpetrators when African Americans were lynched. Nor did the judicial system hold the police accountable for failing to intervene when black people were being murdered by mobs.

Reverberating today

For the past five decades, the federal government has forbidden the use of racist regulations at the state and local level. Yet people of color are still more likely to be killed by the police than whites.

The Washington Post tracks the number of Americans killed by the police by race, gender and other characteristics. The newspaper’s database indicates that 229 out of 992 of those who died that way in 2018, 23% of the total, were black, even though only about 12% of the country is African American.

Policing’s institutional racism of decades and centuries ago still matters because policing culture has not changed as much as it could. For many African Americans, law enforcement represents a legacy of reinforced inequality in the justice system and resistance to advancement – even under pressure from the civil rights movement and its legacy.

In addition, the police disproportionately target black drivers.

When a Stanford University research team analyzed data collected between 2011 and 2017 from nearly 100 million traffic stops to look for evidence of systemic racial profiling, they found that black drivers were more likely to be pulled over and to have their cars searched than white drivers. They also found that the percentage of black drivers being stopped by police dropped after dark when a driver’s complexion is harder to see from outside the vehicle.

This persistent disparity in policing is disappointing because of progress in other regards.

There is greater understanding within the police that brutality, particularly lethal force, leads to public mistrust, and police forces are becoming more diverse.

What’s more, college students majoring in criminal justice who plan to become future law enforcement officers now frequently take “diversity in criminal justice” courses. This relatively new curriculum is designed to, among other things, make future police professionals more aware of their own biases and those of others. In my view, what these students learn in these classes will make them more attuned to the communities they serve once they enter the workforce.

In addition, law enforcement officers and leaders are being trained to recognize and minimize their own biases in New York City and other places where people of color are disproportionately stopped by the authorities and arrested.

But the persistence of racially biased policing means that unless American policing reckons with its racist roots, it is likely to keep repeating mistakes of the past. This will hinder police from fully protecting and serving the entire public.The Conversation


Republished with permission under license from The Conversation.

If it pleases the Prosecution

Every country with a functioning criminal justice system depends on prosecutors, the attorneys who charge defendants with crimes and build the case to convict. But the ones in the US are a breed apart. They are more than agents of the court: Top prosecutors in every US county typically have to run for the office, making them elected officials as well. No other nation in the world elects its prosecutors, and few give them so much power.

Prosecutors in the US have broad discretion over how and when to press their cases, which means they often control the fates of defendants, says Stanford Law School professor David Alan Sklansky. In a 2018 paper published in the Annual Review of Criminology, Sklansky notes that prosecutors are increasingly blamed for the problems that plague US criminal justice — its excessive severity, its lopsided targeting of racial minorities and its propensity for error. Part of the difficulty, he suggests, is the largely unchecked power of prosecutors.

The United States has the highest incarceration rate of any major nation. And the prison population looks far different from the country as a whole. More than 75 percent of the residents of the US identify as white and about 13 percent identify as black. But at the end of 2016, black inmates outnumbered white inmates by 487,000 to 440,000. One report found that black Americans are incarcerated in state prisons at an average rate five times that of white Americans.

Black men also receive federal prison sentences that are on average almost 20 percent longer than those of white men who commit the same crime. When prosecutors offer a plea deal, white defendants are 25 percent more likely than black defendants to have their most serious initial charge dropped or reduced to a less severe charge. And there are a disturbing number of cases in which prosecutorial misconduct has led to convictions that later are overturned on appeal. In one famous case from 1987, prosecutors removed all four potential black members from a jury that later convicted a black man named Timothy Foster of murder. The prosecutors denied that they were motivated by race during jury selection. Years later, Foster’s lawyers obtained prosecutors’ notes and the Supreme Court declared, by a vote of 7-1, that the jury selection in his trial was unconstitutional.

In another case, Anthony Graves, a 26-year-old black man in Texas, was wrongfully convicted in 1994 of murdering a family of six. He ended up spending 18 years behind bars, including 12 years on death row. The real murderer, Robert Carter, eventually confessed that he had acted alone, and investigations showed that the prosecutor, Charles Sebesta, withheld testimony that would have cleared Graves.

A growing chorus of legal scholars and reform-minded prosecutors has called for a new approach that would restore fairness and justice to the prosecutorial process. But Sklansky says reform won’t come easy. Any meaningful change must start with disentangling prosecutors from conflicting roles that straddle the legal and political systems. In other words, he says, we must be clearer about what we want from prosecutors.

Sklansky spoke with Knowable about the rise of prosecutors and the need for reforms to restore fairness and justice. The discussion has been edited for length and clarity.

What is the biggest problem with prosecutors in the US?

It’s hard to say. There are actually several different problems with US prosecutors. One is that they have so much power to coerce guilty pleas, another is that they have almost unbridled discretion over how to use that power. A third is that prosecutors are often overzealous and break the rules, and a fourth is that they are sometime unimaginative about how to use their discretion more constructively.

Texas attorney Charles Sebesta, shown here in front of a county courthouse, was disbarred in 2015 after an investigation found he withheld crucial testimony that would have cleared a man of murder. Anthony Graves spent 18 years behind bars before being released.

But I think the most fundamental problem may be that we have complicated and often contradictory expectations for prosecutors. We want them to be impartial but also to be forceful advocates, to follow the law but also to exercise mercy, and to work closely with the police but also to stand apart from them.

The conflicting expectations for prosecutors, and the ambiguity regarding their role, can make it difficult to regulate them, and difficult for prosecutors themselves to know what it means to do their job well.

Are prosecutors really more powerful than judges?

In many cases, yes. That’s partly due to a surge in statutes calling for mandatory minimum sentences for a wide range of crimes. Because judges have little ability to lower the sentences called for in these statutes, often the only way for defendants to avoid these penalties is to strike a deal with prosecutors — or take their chances at trial. Because prosecutors can threaten such draconian sentences, they have tremendous power to coerce guilty pleas.

Do current laws make it difficult for prosecutors to achieve fair verdicts and sentences?

I wouldn’t say that the laws make it hard for prosecutors to achieve fair results. But they do make it complicated. Some laws — especially many of the laws calling for harsh mandatory sentences — can be unjust when applied to particular cases. So doing justice will often mean being judicious about when these laws should be invoked.

And then there are procedural rules that require prosecutors to take off their advocate’s hat and be fair and impartial. Prosecutors are often called on to decide, for example, when evidence that could be helpful to the defense needs to be disclosed. That’s like asking basketball players to call their own fouls.

We won’t be able to eliminate the ambiguity of the prosecutor’s role, and we should continue to pressure prosecutors to be impartial. But we need to be relatively realistic about how well we can expect them to navigate these conflicting expectations.

Why don’t prosecutors use their powers more fairly?

Again, it’s important to stress that many prosecutors work hard to be impartial, and many do an admirable job of exercising their powers in a balanced, thoughtful way. But many prosecutors’ offices have a culture of competitiveness, and courtroom victories are the primary measure of their success. Prosecutors are attracted to the job partly because of the excitement of legal combat. Too often, convictions and long sentences get celebrated, even if they are undeserved.

It’s hard to shift prosecutors’ priorities from victory to justice. Prosecutors don’t get their names in the newspaper because they worked out a reasonable compromise. “So-and-so convicted on all counts” is an easy headline to write.

If prosecutors want to achieve true justice for defendants, they need to ask themselves some tough questions that go beyond convictions and acquittals — questions that can be very difficult to answer. Have they helped to resolve cases in ways that are equitable and humane? Have they helped move the community forward?

Why do we keep learning about cases where prosecutors have failed to disclose evidence that would help the defense?

Prosecutors have vastly more investigative resources at their disposal than defense attorneys, so they often have more access to information and evidence. Prosecutors are required to share evidence with the defense only if it could help the defendant in a significant way. But because they’re so motivated to win, it can be very hard for prosecutors to objectively decide whether the evidence they’ve uncovered is worth sharing. They have an incentive to convince themselves it isn’t.

Is there a lack of diversity among prosecutors, and does that contribute to unfair and discriminatory practices?

Prosecutors’ offices generally don’t disclose statistics on racial and gender demographics, so we don’t know much about prosecutor diversity. A few years ago, some of my students at Stanford Law School carried out research on the race and gender of prosecutors in California. As far as I know, this was the first time that comprehensive statistics of this kind were compiled for prosecutors in any state. And what the students found was that prosecutors in California are far whiter than the state as a whole.

That matters. There’s very good reason to believe that when prosecutors don’t reflect the diversity of the communities that they serve, it skews their decision-making. Diversity reduces systemic bias and makes it easier for prosecutors to take into account the perspectives of all parts of the community.

Racial diversity is never a panacea. Just as police departments aren’t magically transformed by employing more minority officers, we can’t fix prosecutors’ offices simply be electing or hiring people from different backgrounds. But when prosecutor offices are as diverse as the communities they serve, they bring different skills and perspectives and give fairer consideration to all the factors that should go into prosecutorial decision-making.

Other than increasing diversity, how else could the system be improved?

We need safeguards against prosecutorial power. Strengthening the resources of defense attorneys would be an important step. The vast majority of criminal defendants in the US are represented by appointed counsel, because they’re too poor to hire their own lawyers, and we’ve known for decades that we don’t pay enough to appointed defense attorneys or employ enough of them; they’re overworked and under-resourced. We need to invest more in defense if we want the system to operate properly.

Legislatures can help by rolling back mandatory sentences and by strengthening and clarifying the rules requiring prosecutors to share evidence with defense counsel.

More judicial oversight could also make a big difference. Judges could reclaim some of their power by tightening the rules that require prosecutors to share evidence with the defense. They could force prosecutors to explain and justify their charging decisions and their plea bargaining offers in court. In many courts, judges have the authority to dismiss cases in the interest of justice, such as when prosecutors pursue draconian sentences.

But in order for any of that happen, there would need to be something of a change of judicial mindset; judges would need to believe that prosecutors should be held more accountable, and to believe that it’s part of the business of the judiciary to make that happen.

Finally, there is much that prosecutors themselves can do — and in many places, are doing — to make the system fairer, less discriminatory and less damaging. They don’t need to wait for legislation mandating more disclosure of evidence; they can start doing that on their own. They can stop using unreasonably long mandatory minimum sentences to coerce guilty pleas. And they can work to change the cultures of their offices, so that fair outcomes are celebrated and not just courtroom victories.

Is reform on the horizon?

To some extent, yes. We’re in an unusual moment now because there is great attention to reforming prosecutors’ offices through the ballot box. Criminal justice crusaders have devoted more attention to elections over the last decade. As a result, we have a growing number of head prosecutors who’ve won elections based on a platform of pulling back on mass incarceration and seeking a more balanced approach to criminal justice. For the most part, though, this wave of reform isn’t doing anything to reduce the power of prosecutors’ offices.

How significant is the criminal justice reform bill that passed at the federal level in 2018?

It’s a step in the right direction, although it affects only federal prosecutors. The law modestly cuts back on mandatory minimum sentences and allows federal judges to hand down sentences lower than the statutory minimums without any motion from the prosecutor. That means that federal prosecutors, in some cases, won’t have quite as heavy a hammer to use in pressuring defendants to plead guilty. The new law is important symbolically, even for state prosecutors. It’s a signal of the growing consensus in the US that criminal justice has veered too far in the direction of severity, and that tougher isn’t always better.

What if wider reform doesn’t happen?

If there’s no reform, we’ll likely continue to face the dire problems of the criminal justice system: mass incarceration, excessively long sentences, wrongful convictions and racial bias. Prosecutors have helped to create all of these problems, and they have a critical role in solving them.

Read more about prosecutors

The Fast Track to a US Attorney’s Office — this Harvard Law School guide describes the prosecutor’s role and the paths to becoming one.

Stuck in the ’70s: The Demographics of California Prosecutors — a 2015 paper co-authored by David Alan Sklansky examines the gender and race of the state’s prosecutors.

Prosecution in America — covers the history and the unique aspects of US prosecutors.

The Origins of Public Prosecution at Common Law — the origins and development of prosecutorial roles through history.


Republished with permission under license from Knowable Magazine.

 

Getting poorer while working harder: The ‘cliff effect’

By Susan R. Crandall, University of Massachusetts Boston

Forty percent of all working-age Americans sometimes struggle to pay their monthly bills.

There is no place in the country where a family supported by one minimum-wage worker with a full-time job can live and afford a 2-bedroom apartment at the average fair-market rent.

Average Walmart workers make twice the federal minimum wage but may still qualify for public benefits.

Given the pressure to earn enough to make ends meet, you would think that low-paid workers would be clamoring for raises. But this is not always the case.

Because so many American jobs don’t earn enough to pay for food, housing and other basic needs, many low-wage workers rely on public benefits that are only available to people in need, such as housing vouchers and Medicaid, to pay their bills.

Earning a little more money may not automatically increase their standard of living if it boosts their income to the point where they lose access to some or all of those benefits. That’s because the value of those lost benefits may outweigh their income gains.

I have researched this dynamic, which experts often call the “cliff effect,” for years to learn why workers weren’t succeeding at retaining their jobs following job training programs. Chief among the one step forward, two steps back problems the cliff effect causes: Low-paid workers can become reluctant to earn more money due to a fear that they will get worse off instead of better.

Trapped

“My supervisor wants to promote me,” a woman who gets housing assistance through the federal Section 8 housing voucher program, who I’ll call Josie, told me. “If my pay goes up, my rent will go up too. I don’t know if I’ll be able to afford my apartment,” Josie, a secretary at a Boston hospital, said.

These vouchers are available to Americans facing economic hardship, based on multiple criteria, including their income. Josie was worried that the bump up in pay that she’d get from the promotion would not make up for the loss of help she gets to pay her rent.

Given the possibility of a downside, many Americans in this situation decide it’s better to decline what on the surface looks like a good opportunity to escape poverty.

This uncertainty leads workers like Josie to forgo raises rather than take the risk of getting poorer while working harder. Having to stress out about potentially losing benefits that keep a roof over their heads and food on their table prolongs their own financial instability.

The pain isn’t just personal. Josie’s whole family misses out if she passes on an opportunity to earn more. The government loses a chance to stop using taxpayer dollars to cover benefits to someone who might not otherwise need them. The hospital can’t take full advantage of Josie’s proven talents.

Not always

Some low-paid workers do get farther behind when they should be getting ahead following a raise. But getting higher pay doesn’t always make anyone worse off. Whether it does or not depends on a lot of intersecting factors, like the local cost of living, the size of the raise, the size of the family and the benefits the worker receives.

The cliff effect is something social workers see their clients encounter all the time. And it’s maddeningly impossible to figure out for the people experiencing it and researchers like me alike.

Some benefits, notably the Supplemental Nutrition Assistance Program, the nation’s largest program designed to alleviate hunger, do include some incentives for recipients to earn more. SNAP, as today’s version of food stamps is known, tapers its phaseout for eligibility as incomes grow, rather than rendering people ineligible as soon as their pay crosses a single threshold.

But low-wage workers, such as those in food service, hospitality and retail have no way of knowing what to expect if they get SNAP benefits in combination with other government programs, such as housing vouchers and Medicaid.

At the heart of this problem is that the help millions Americans derive from the nation’s safety net comes from a fragmented system. Sorting out the repercussions of a higher income is nearly impossible because the safety net consists of a wide array of benefits programs administered by federal, state and local agencies. Each program and administrator has its own criteria, rules and restrictions.

Because that trepidation is sometimes unfounded, my colleagues at Project Hope Boston, a multi-service agency focused on moving the city’s families up and out of poverty, and I started to do something about it.

Fixing it

To help families assess risks tied to the cliff effect, we advised the Massachusetts Department of Transitional Assistance, which oversees state-administered safety net programs, to create a digital tool. Social workers are already using a preliminary version of it to show low-wage workers what they can probably expect to happen to their benefits if they earn more money.

You have to consider a lot of variables to see whether someone will experience the cliff effect. Massachusetts Department of Transitional Assistance, CC BY-ND

The Commonwealth of Massachusetts plans to put this tool online for all to use by Summer of 2019.

After plugging information about variables like how many members are in the household, what benefits everyone receives, the costs of their regular expenses like rent, child care and medical bills, they become better able to make informed choices about their career opportunity based on their family’s personal financial situation.

But workers need more than just a tool, they need help getting over the cliff. We also help workforce development programs implement the state’s new Learn to Earn initiative, which gives low-income families the financial coaching they need to make educated decisions that could affect their bottom line.

This problem is becoming increasingly urgent because dozens of states, cities and counties are enforcing higher minimum wages, and employers are voluntarily raising pay as well, including Target and Amazon. Some places, including Massachusetts and the cities of Minneapolis and St. Paul in Minnesota, are even phasing in $15-an-hour minimums.

But the reality is that even after some of the biggest minimum wage increases enacted at the state level lately, many families are not earning enough to pay for housing and other basic needs without help – for which they may no longer qualify. Several states, including Colorado and Florida, are seeking solutions.This complicated and frustrating challenge is just one symptom of an overarching problem. In addition to boosting wages, it will take major policy changes, like making child care more universally available and affordable, to offset the skyrocketing costs of living for American workers.The Conversation


Republished with permission under license from The Conversation.

The future of work: Will robots take my job?

Back in the 1990s, when US banks started installing automated teller machines in a big way, the human tellers who worked in those banks seemed to be facing rapid obsolescence. If machines could hand out cash and accept deposits on their own, around the clock, who needed people?

The banks did, actually. It’s true that the ATMs made it possible to operate branch banks with many fewer employees: 13 on average, down from 20. But the cost savings just encouraged the parent banks to open so many new branches that the total employment of tellers actually went up.

The robots are coming: SpaceX founder Elon Musk, and the late physicist Stephen Hawking both publicly warned that machines will eventually start programming themselves, and trigger the collapse of human civilization.

You can find similar stories in fields like finance, health care, education and law, says James Bessen, the Boston University economist who called his colleagues’ attention to the ATM story in 2015. “The argument isn’t that automation always increases jobs,” he says, “but that it can and often does.”

That’s a lesson worth remembering when listening to the increasingly fraught predictions about the future of work in the age of robots and artificial intelligence. Think driverless cars, or convincingly human speech synthesis, or creepily lifelike robots that can run, jump and open doors on their own: Given the breakneck pace of progress in such applications, how long will there be anything left for people to do?

That question has been given its most apocalyptic formulation by figures such as Tesla and SpaceX founder Elon Musk and the late physicist Stephen Hawking. Both have publicly warned that the machines will eventually exceed human capabilities, move beyond our control and perhaps even trigger the collapse of human civilization. But even less dramatic observers are worried. In 2014, when the Pew Research Center surveyed nearly 1,900 technology experts on the future of work, almost half were convinced that artificially intelligent machines would soon lead to accelerating job losses — nearly 50 percent by the early 2030s, according to one widely quoted analysis. The inevitable result, they feared, would be mass unemployment and a sharp upswing in today’s already worrisome levels of income inequality. And that could indeed lead to a breakdown in the social order.

Or maybe not. “It’s always easier to imagine the jobs that exist today and might be destroyed than it is to imagine the jobs that don’t exist today and might be created,” says Jed Kolko, chief economist at the online job-posting site Indeed. Many, if not most, experts in this field are cautiously optimistic about employment — if only because the ATM example and many others like it show how counterintuitive the impact of automation can be. Machine intelligence is still a very long way from matching the full range of human abilities, says Bessen. Even when you factor in the developments now coming through the pipeline, he says, “we have little reason in the next 10 or 20 years to worry about mass unemployment.”

So — which way will things go?

There’s no way to know for sure until the future gets here, says Kolko. But maybe, he adds, that’s not the right question: “The debate over the aggregate effect on job losses versus job gains blinds us to other issues that will matter regardless” — such as how jobs might change in the face of AI and robotics, and how society will manage that change. For example, will these new technologies be used as just another way to replace human workers and cut costs? Or will they be used to help workers, freeing them to exercise uniquely human abilities like problem-solving and creativity?

“There are many different possible ways we could configure the state of the world,” says Derik Pridmore, CEO of Osaro, a San Francisco-based firm that makes AI software for industrial robots, “and there are a lot of choices we have to make.”

Automation and jobs: lessons from the past

In the United States, at least, today’s debate over artificially intelligent machines and jobs can’t help but be colored by memories of the past four decades, when the total number of workers employed by US automakers, steel mills and other manufacturers began a long, slow decline from a high of 19.5 million in 1979 to about 17.3 million in 2000 — followed by a precipitous drop to a low of 11.5 million in the aftermath of the Great Recession of 2007–2009. (The total has since recovered slightly, to about 12.7 million; broadly similar changes were seen in other heavily automated countries such as Germany and Japan.) Coming on top of a stagnation in wage growth since about 1973, the experience was traumatic.

True, says Bessen, automation can’t possibly be the whole reason for the decline. “If you go back to the previous hundred years,” he says, “industry was automating at as fast or faster rates, and employment was growing robustly.” That’s how we got to millions of factory workers in the first place. Instead, economists blame the employment drop on a confluence of factors, among them globalization,the decline of labor unions, and a 1980s-era corporate culture in the United States that emphasized down-sizing, cost-cutting and quarterly profits above all else.

But automation was certainly one of those factors. “In the push to reduce costs, we collectively took the path of least resistance,” says Prasad Akella, a roboticist who is founder and CEO of Drishti, a start-up firm in Palo Alto, California, that uses AI to help workers improve their performance on the assembly line. “And that was, ‘Let’s offshore it to the cheapest center, so labor costs are low. And if we can’t offshore it, let’s automate it.’”

AI and robots in the workplace

Automation has taken many forms, including computer-controlled steel mills that can be operated by just a handful of employees, and industrial robots, mechanical arms that can be programmed to move a tool such as a paint sprayer or a welding torch through a sequence of motions. Such robots have been employed in steadily increasing numbers since the 1970s. There are currently about 2 million industrial robots in use globally, mostly in automotive and electronics assembly lines, each taking the place of one or more human workers.

The distinctions among automation, robotics and AI are admittedly rather fuzzy — and getting fuzzier, now that driverless cars and other advanced robots are using artificially intelligent software in their digital brains. But a rough rule of thumb is that robots carry out physical tasks that once required human intelligence, while AI software tries to carry out human-level cognitive tasks such as understanding language and recognizing images. Automation is an umbrella term that not only encompasses both, but also includes ordinary computers and non-intelligent machines.

AI’s job is toughest. Before about 2010, applications were limited by a paradox famously pointed out by the philosopher Michael Polanyi in 1966: “We can know more than we can tell” — meaning that most of the skills that get us through the day are practiced, unconscious and almost impossible to articulate. Polanyi called these skills tacit knowledge, as opposed to the explicit knowledge found in textbooks.

Imagine trying to explain exactly how you know that a particular pattern of pixels is a photograph of a puppy, or how you can safely negotiate a left-hand turn against oncoming traffic. (It sounds easy enough to say “wait for an opening in traffic” — until you try to define an “opening” well enough for a computer to recognize it, or to define precisely how big the gap must be to be safe.) This kind of tacit knowledge contained so many subtleties, special cases and things measured by “feel” that there seemed no way for programmers to extract it, much less encode it in a precisely defined algorithm.

Today, of course, even a smartphone app can recognize puppy photos (usually), and autonomous vehicles are making those left-hand turns routinely (if not always perfectly). What’s changed just within the past decade is that AI developers can now throw massive computer power at massive datasets — a process known as “‘deep learning.” This basically amounts to showing the machine a zillion photographs of puppies and a zillion photographs of not-puppies, then having the AI software adjust a zillion internal variables until it can identify the photos correctly.

Although this deep learning process isn’t particularly efficient — a human child only has to see one or two puppies — it’s had a transformative effect on AI applications such as autonomous vehicles, machine translation and anything requiring voice or image recognition. And that’s what’s freaking people out, says Jim Guszcza, US chief data scientist at Deloitte Consulting in Los Angeles: “Wow — things that before required tacit knowledge can now be done by computers!” Thus the new anxiety about massive job losses in fields like law and journalism that never had to worry about automation before. And thus the many predictions of rapid obsolescence for store clerks, security guards and fast-food workers, as well as for truck, taxi, limousine and delivery van drivers.

Meet my colleague, the robot

But then, bank tellers were supposed to become obsolete, too. What happened instead, says Bessen, was that automation via ATMs not only expanded the market for tellers, but also changed the nature of the job: As tellers spent less time simply handling cash, they spent more time talking with customers about loans and other banking services. “And as the interpersonal skills have become more important,” says Bessen, “there has been a modest rise in the salaries of bank tellers,” as well as an increase in the number of full-time rather than part-time teller positions. “So it’s a much richer picture than people often imagine,” he says.

Similar stories can be found in many other industries. (Even in the era of online shopping and self-checkout, for example, the employment numbers for retail trade are going up smartly.) The fact is that, even now, it’s very hard to completely replace human workers.

Steel mills are an exception that proves the rule, says Bryan Jones, CEO of JR Automation, a firm in Holland, Michigan, that integrates various forms of hardware and software for industrial customers seeking to automate. “A steel mill is a really nasty, tough environment,” he says. But the process itself — smelting, casting, rolling, and so on — is essentially the same no matter what kind of steel you’re making. So the mills have been comparatively easy to automate, he says, which is why the steel industry has shed so many jobs.

When people are better

“Where it becomes more difficult to automate is when you have a lot of variability and customization,” says Jones. “That’s one of the things we’re seeing in the auto industry right now: Most people want something that’s tailored to them,” with a personalized choice of color, accessories or even front and rear grills. Every vehicle coming down the assembly line might be a bit different.

It’s not impossible to automate that sort of flexibility, says Jones. Pick a task, and there’s probably a laboratory robot somewhere that has mastered it. But that’s not the same as doing it cost-effectively, at scale. In the real world, as Akella points out, most industrial robots are still big, blind machines that go through their motions no matter who or what is in the way, and have to be caged off from people for safety’s sake. With machines like that, he says, “flexibility requires a ton of retooling and a ton of programming — and that doesn't happen overnight.”

Contrast that with human workers, says Akella. The reprogramming is easy: “You just walk onto the factory floor and say, ‘Guys, today we’re making this instead of that.’” And better still, people come equipped with abilities that few robot arms can match, including fine motor control, hand-eye coordination and a talent for dealing with the unexpected.

All of which is why most automakers today don’t try to automate everything on the assembly line. (A few of them did try it early on, says Bessen. But their facilities generally ended up like General Motors’ Detroit-Hamtramck assembly plant, which quickly became a debugging nightmare after it opened in 1985: Its robots were painting each other as often as they painted the Cadillacs.) Instead, companies like Toyota, Mercedes-Benz and General Motors restrict the big, dumb, fenced-off robots to tasks that are dirty, dangerous and repetitive, such as welding and spray-painting. And they post their human workers to places like the final assembly area, where they can put the last pieces together while checking for alignment, fit, finish and quality — and whether the final product agrees with the customer’s customization request.

To help those human workers, moreover, many manufacturers (and not just automakers) are investing heavily in collaborative robots, or “cobots” — one of the fastest-growing categories of industrial automation today.

Sawyer, a collaborative robot made by Rethink Robotics, is one of many such "cobots" designed to work safely alongside humans on the shop floor. Sawyer guides its movements with a computer vision system, uses force feedback to know how hard it is gripping (and to keep from crushing things), and can be trained to do a new task simply by guiding its 7-jointed arm through the required motion. The expression of the eyes on the display screen change to indicate Sawyer's status, from "working well" to "needs attention."

Collaborative robots: Machines work with people

Cobots are now available from at least half a dozen firms. But they are all based on concepts developed by a team working under Akella in the mid-1990s, when he was a staff engineer at General Motors. The goal was to build robots that are safe to be around, and that can help with stressful or repetitive tasks while still leaving control with the human workers.

To get a feel for the problem, says Akella, imagine picking up a battery from a conveyor belt, walking two steps, dropping it into the car and then going back for the next one — once per minute, eight hours per day. “I've done the job myself,” says Akella, “and I can assure you that I came home extremely sore.” Or imagine picking up a 150-pound “cockpit” — the car’s dashboard, with all the attached instruments, displays and air-conditioning equipment — and maneuvering it into place through the car’s doorway without breaking anything.

Devising a robot that could help with such tasks was quite a novel research challenge at the time, says Michael Peshkin, a mechanical engineer at Northwestern University in Evanston, Illinois, and one of several outside investigators that Akella included in his team. “The field was all about increasing the robots’ autonomy, sensing and capacity to deal with variability,” he says. But until this project came along, no one had focused too much on the robots’ ability to work with people.

So for their first cobot, he and his Northwestern colleague Edward Colgate started with a very simple concept: a small cart equipped with set of lifters that would hoist, say, the cockpit, while the human worker guided it into place. But the cart wasn’t just passive, says Peshkin: It would sense its position and turn its wheels to stay inside a “virtual constraint surface” — in effect, an invisible midair funnel that would guide the cockpit through the door and into position without a scratch. The worker could then check the final fit and attachments without strain.

Cobots can be adapted to help human workers in a wide variety of manufacturing environments. At MS Schramberg, a mid-sized magnet manufacturer in Baden-Württemberg, Germany, multiple collaborative robots called Sawyers have been deployed to relieve workers from some of the most repetitive assembly tasks.

Another GM-sponsored prototype replaced the cart with a worker-guided robotic arm that could lift auto components while hanging from a movable suspension point on the ceiling. But it shared the same principle of machine assistance plus worker control — a principle that proved to be critically important when Peshkin and his colleagues tried out their prototypes on General Motors’ assembly line workers.

“We expected a lot of resistance,” says Peshkin. “But in fact, they were welcoming and helpful. They totally understood the idea of saving their backs from injury.” And just as important, the workers loved using the cobots. They liked being able to move a little faster or a little slower if they felt like it. “With a car coming along every 52 seconds,” says Peshkin, “that little bit of autonomy was really important.” And they liked being part of the process. “People want their skills to be on display,” he says. “They enjoy using their bodies, taking pleasure in their own motion.” And the cobots gave them that, he says: “You could swoop along the virtual surface, guide the cockpit in and enjoy the movement in a way that fixed machinery didn’t allow.”

AI and its limits

Akella’s current firm, Drishti, reports a similarly welcoming response to its AI-based software. Details are proprietary, says Akella. But the basic idea is to use advanced computer vision technology to function somewhat like a GPS for the assembly line, giving workers turn-by-turn instructions and warnings as they go. Say that a worker is putting together an iPhone, he explains, and the camera watching from overhead believes that only three out of four screws were secured: “We alert the worker and say, ‘Hey, just make sure to tighten that screw as well before it goes down the line.’”

This does have its Big Brother aspects, admits Drishti’s marketing director, David Prager. “But we’ve got a lot of examples of operators on the floor who become very engaged and ultimately very appreciative,” he says. “They know very well the specter of automation and robotics bearing down on them, and they see very quickly that this is a tool that helps them be more efficient, more precise and ultimately more valuable to the company. So the company is more willing to invest in its people, as opposed to getting them out of the equation.”

This theme — using technology to help people do their jobs rather than replacing people — is likely to be a characteristic of AI applications for a long time to come. Just as with robotics, there are still some important things that AI can’t do.

Robot arms can be equipped with “hands,” or grippers, that are specialized for the specific job. Here, Sawyer is using a gripper consisting of an array of suction cups to position a circuit board very precisely in a testing stand.

Take medicine, for example. Deep learning has already produced software that can interpret X rays as well as or better than human radiologists, says Darrell West, a political scientist who studies innovation at the Brookings Institution in Washington, DC. “But we’re not going to want the software to tell somebody, ‘You just got a possible cancer diagnosis,’” he says. “You're still going to need a radiologist to check on the AI, to make sure that what it observed actually is the case” — and then, if the results are bad, a cancer specialist to break the news to the patient and start planning out a course of treatment.

Likewise in law, where AI can be a huge help in finding precedents that might be relevant to a case — but not in interpreting them, or using them to build a case in court. More generally, says Guszcza, deep-learning-based AI is very good at identifying features and focusing attention where it needs to be. But it falls short when it comes to things like dealing with surprises, integrating many diverse sources of knowledge and applying common sense — “all the things that humans are very good at.”

During the 2016 election campaign, to test Google’s Translate utility, he tried a classic experiment: Take a headline — “Hillary slams the door on Bernie” — then ask Google to translate it from English to Bengali and back again. Result: “Barney slam the door on Clinton.” A year later, after Google had done a massive upgrade of Translate using deep learning, Guszcza repeated the experiment with the result: “Hillary Barry opened the door.”

“I don’t see any evidence that we’re going to achieve full common-sense reasoning with current AI,” he says, echoing a point made by many AI researchers themselves. In September 2017, for example, deep learning pioneer Geoffrey Hinton, a computer scientist at the University of Toronto, told the news site Axios that the field needs some fundamentally new ideas if researchers ever hope to achieve human-level AI.

Job evolution

AI’s limitations are another reason why economists like Bessen don’t see it causing mass unemployment anytime soon. “Automation is almost always about automating a task, not the entire job,” he says, echoing a point made by many others. And while every job has at least a few routine tasks that could benefit from AI, there are very few jobs that are all routine. In fact, says Bessen, when he systematically looked at all the jobs listed in the 1950 census, “there was only one occupation that you could say was clearly automated out of existence — elevator operators.” There were 50,000 in 1950, and effectively none today.

On the other hand, you don’t need mass unemployment to have massive upheaval in the workplace, says Lee Rainie, director of internet and technology research at the Pew Research Center in Washington, DC. “The experts are hardly close to a consensus on whether robotics and artificial intelligence will result in more jobs, or fewer jobs,” he says, “but they will certainly change jobs. Everybody expects that this great sorting out of skills and functions will continue for as far as the eye can see.”

Worse, says Rainie, “the most worried experts in our sample say that we’ve never in history faced this level of change this rapidly.” It’s not just information technology, or artificial intelligence, or robotics, he says. It’s also nanotechnology, biotechnology, 3-D printing, communication technologies — on and on. “The changes are happening on so many fronts that they threaten to overwhelm our capacity to adjust,” he says.

Preparing for the future of work

If so, the resulting era of constant job churn could force some radical changes in the wider society. Suggestions from Pew’s experts and others include an increased emphasis on continuing education and retraining for adults seeking new skills, and a social safety net that has been revamped to help people move from job to job and place to place. There is even emerging support in the tech sector for some kind of guaranteed annual income, on the theory that advances in AI and robotics will eventually transcend the current limitations and make massive workplace disruptions inevitable, meaning that people will need a cushion.

This is the kind of discussion that gets really political really fast. And at the moment, says Rainie, Pew’s opinion surveys show that it’s not really on the public’s radar: “There are a lot of average folks, average workers saying, ‘Yeah, everybody else is going to get messed up by this — but I’m not. My business is in good shape. I can’t imagine how a machine or a piece of software could replace me.’”

But it’s a discussion that urgently needs to happen, says West. Just looking at what’s already in the pipeline, he says, “the full force of the technology revolution is going to take place between 2020 and 2050. So if we make changes now and gradually phase things in over the next 20 years, it’s perfectly manageable. But if we wait until 2040, it will probably be impossible to handle.”


Republished with permission under license from Knowable Magazine.

Mired In Medical Debt? Federal Plan Would Update Overdue-Bill Collection Methods

Editorial note by Randall Hill

I was hospitalized recently for three weeks. I was rushed by ambulance to the emergency room, transferred to another hospital for surgery where I spent the majority of my recovery in the intensive care unit (ICU).

Although a hospital is within an insurance provider’s network, the doctors providing care may not be. For insurance purposes, those physicians might be considered “out-of-network” providers, and the insurance company may not cover any of the treatment costs. This from what I understand is a fairly common practice. When this happens, the patient even when covered by insurance has to cover the majority of the medical cost.

Elham Mirshafiei was at the library cramming for final exams during her senior year at California State University-Long Beach when she grew nauseated and started vomiting. After the 10th episode in an hour, a friend took her to the nearest emergency room. Diagnosis: an intestinal bug and severe dehydration. In a few hours, she was home again, with instructions to eat a bland diet and drink plenty of fluids.

That was in 2010. But the $4,000 bill for the brief emergency department visit at an out-of-network hospital has trailed her ever since. Mirshafiei, 31, has a good job now as a licensed insurance adviser in Palo Alto, Calif. But money is still tight and her priority is paying off her $67,000 student loan debt rather than that old hospital bill.

Once or twice a year she gets a letter from a collection agency. She ignores them, and, so far, the consequences have been manageable. “It’s not like electricity that gets cut off if you don’t pay it,” she said.

Mirshafiei has plenty of company. At least 43 million other Americans have overdue medical bills on their credit reports, a federal Consumer Financial Protection Bureau report on medical debt found in 2014. And 59% of people contacted by a debt collector say the exchange was over medical bills, the most common type of contact stemming from an overdue bill, according to the CFPB.

This month, the CFPB proposed a rule to frame what debt collectors are allowed to do when pursuing many types of overdue bills, including medical debt.

Federal law already prohibits debt collectors from harassing consumers or contacting them before 8 a.m. or after 9 p.m., among other things. But the law, which was passed in 1977, didn’t anticipate emails and text messages. The CFPB’s proposal clarifies how debt collectors can use these communication tools. And it would allow consumers to opt out of being contacted this way.

The rule also specifies that debt collectors can make no more than seven telephone calls weekly over a specific debt.

But some consumer advocates panned the effort. “This really doesn’t go far enough to protect consumers and make sure that consumers are not abused or harassed or subject to unfair collection practices in debt collection,” said April Kuehnhoff, an attorney at the National Consumer Law Center who specializes in debt collection.

For instance, the center wants a limit of just three telephone attempts each week on a debt. The seven-call limit could be particularly tough on people with medical debt, Kuehnhoff said. They may accumulate bills from several providers for a single medical event — hospital, doctors, a lab and a nursing home, for example — and all could be in collections separately, potentially resulting in dozens of calls each week.

Debt collectors aren’t necessarily in favor of the seven-call cap either, but for different reasons. They say that limiting the number of calls could lead to more litigation or adverse credit reporting rather than working out a payment plan. Overall, the proposed rule seemed to strike a good balance between collection industry and consumer concerns, said Leah Dempsey, vice president and senior counsel for federal affairs at ACA International, a trade group representing 2,500 debt collectors, asset buyers and related professions.

The general consensus is that people should pay their debts. But taking responsibility for medical debt isn’t always as straightforward as paying off a large-screen TV that someone put on a credit card. Did health insurance pay the correct amount? Was the person screened for eligibility for Medicaid, charity care or financial assistance?

“The actual debt collector problem is often about the lack of accountability that providers have for the people that they pass their debt along to,” said Leonardo Cuello, director of health policy at the National Health Law Program.

When a debt collector calls, consumers who are confused about the bill should ask, in writing and generally within 30 days, that the debt be validated. Debts are often bundled and sold multiple times to different collectors, which means errors may be introduced along the way. “There are no magic words; you don’t need to cite the statute,” said Justin J. Lowe, legal director at Health Law Advocates, a nonprofit law firm in Boston that helps people with low incomes who are having trouble accessing or paying for medical care.

At that point, the collection agency has to stop activities until it proves what the consumer owes. The proposed CFPB rule would spell out verification information that must be provided along with instructions for consumers about how to dispute the debt.

The proposal would also address other practices, including the collection of so-called zombie debt. That refers to a bill that has passed a time limit — or statute of limitations — for bringing legal action, often between three and six years, depending on the state. In many states, if a collector sues someone for such a time-barred debt, consumers can raise the issue in court in their defense. If a judge agrees, the case could be dismissed.

Consumer advocates have long wanted debt collectors to be prohibited from trying to collect zombie debt. After several years, it can be difficult for patients to remember whether a bill has been paid or to locate records, they argue.

The proposed CFPB rule would prohibit debt collectors from suing or threatening to sue consumers for zombie debt, but only if the collectors knew or should have known that the statute of limitations had expired. That puts the onus on the consumer to prove what was in the debt collector’s mind rather than merely showing that too much time had passed to collect.

It’s unclear how the proposed changes announced by the CFPB might affect Mirshafiei’s situation. The statute of limitations in California on written contracts is four years.

One thing someone in Mirshafiei’s situation should be aware of is that making a payment could reset the statute of limitations, Lowe said. The debt collector could argue that by making a payment the person is affirming that he or she owes the debt.

Because of her damaged credit, Mirshafiei needed a relative to co-sign for student loans for graduate school. She worries that if she tries to buy a house, she’ll have trouble getting approved.

“I just hope that in the next chapter of my life I don’t have to be denied things because of this stain on my record,” she said.

As the federal government moves ahead with the rule to address various types of debt collection activities, legislators in a few states have introduced bills that specifically target medical debt. Their efforts often focus on improving access to financial assistance for medical care and limiting predatory debt collection tactics.

Last month, Washington Gov. Jay Inslee signed a law that reduces the maximum interest rate on medical debt prior to a court judgment from 12% to 9%. It also prohibits sending a medical debt to collections until 120 days after the patient is sent the initial bill and requires collection agencies to provide itemized statements to patients for medical and hospital debts and to notify them of their possible eligibility for charity care.

In Oregon, a bill sponsored by Rep. Andrea Salinas would require nonprofit hospitals and affiliated clinics to provide care free of charge to families with incomes up to 200% of the federal poverty level (about $43,000 for a family of three) and charge a sliding scale for families earning up to 400% of the poverty level (about $85,000 for a three-person family).

Like the Washington law, the Oregon bill places limits on the interest charged for medical debt. It also requires health care facilities to screen patients for eligibility for financial assistance and insurance.

The bill passed the House earlier this month. Some hospitals already have strong financial assistance policies, but the playing field needs leveling, said Salinas. “We really need hospitals to be a part of the solution to prevent consumers from going into bankruptcy over medical debt.”


Republish with permission under license from Kaiser Health News a national health policy news service. 


Helpful Links

How to Deal With Medical Debt Collection

Ways to remove medical collections from your credit reports

Facing a Medical Debt Lawsuit? Take These 10 Steps First

It’s Getting Worse: The IRS Now Audits Poor Americans at About the Same Rate as the Top 1%

As the agency’s ability to audit the rich crumbles, its scrutiny of the poor has held steady in recent years. Meanwhile, a new study shows that audits of poor taxpayers make them far less likely to claim credits they might be entitled to.

employee exits the building in Washington, D.C.

By Paul Kiel

Every year, the IRS, starved of funds after years of budget cuts, loses hundreds more agents to retirement. And every year, the news gets better for the rich — especially those prone to go bold on their taxes. According to data released by the IRS last week, millionaires in 2018 were about 80% less likely to be audited than they were in 2011.

But poor taxpayers continue to bear the brunt of the IRS’ remaining force. As we reported last year, Americans who receive the earned income tax credit, one of the country’s largest anti-poverty programs, are audited at a higher rate than all but the richest taxpayers. The new data shows that the trend has only grown stronger.

Audits of the rich continue to plunge while those of the poor hold steady, and the two audit rates are converging. Last year, the top 1% of taxpayers by income were audited at a rate of 1.56%. EITC recipients, who typically have annual income under $20,000, were audited at 1.41%.

Part of the reason is ease. Audits of EITC recipients are largely automated and far less complicated.

“While the wealthy now have an open invitation to cheat, low-income taxpayers are receiving heightened scrutiny because they can be audited far more easily. All it takes is a letter instead of a team of investigators and lawyers,” said Sen. Ron Wyden, D-Ore., the ranking member of the Senate Finance Committee.

“We have two tax systems in this country,” he said, “and nothing illustrates that better than the IRS ignoring wealthy tax cheats while penalizing low-income workers over small mistakes.”

In a statement, IRS spokesman Dean Patterson acknowledged that the sharp decline in audits of the wealthy is due to the agency having lost so many skilled auditors. And he didn’t dispute that pursuing the poor is just easier.

Because EITC audits are largely conducted through the mail by lower-level employees from a central location, they are “less burdensome for taxpayers than in-person audits as they mail in their documentation and don’t have to take time out of the workday,” Patterson said.

“Correspondence audits are also the most efficient use of IRS’ limited examination resources.”

In April, Wyden, citing ProPublica’s reporting, asked IRS Commissioner Charles Rettig to deliver a plan to address the agency’s disproportionate focus on auditing the poor. The deadline has passed, but Wyden’s office said the senator still expects a response. The IRS did not comment on the delay.

The agency audited 382,000 recipients of the EITC in 2018, accounting for 43% of all audits of individuals last year. When we mapped the estimated audit rates for every county in America, the counties with the highest audit rates were poor, rural, mostly African American and in the South, a reflection of the high number of EITC claims there.

Natassia Smick and her husband were among those unlucky 382,000 households. We wrote about them last year. They live outside Los Angeles and saw their entire refund frozen in February 2018. For a couple who earned about $33,000 in 2017, that $7,300 refund was big money ($2,000 of it stemmed from the EITC). When it didn’t come, Smick said she had to abandon plans for catching up with her credit card debt.

After Smick sent in all her supporting documents, it took until this May to get a final answer from the IRS. Fourteen months after it all started, the IRS said it agreed Smick and her husband were due about $7,000, she said. But the agency disagreed on the remaining $350, because it couldn’t verify her husband’s employment for part of the year. Smick said the IRS was wrong to hold back the $350, but she couldn’t afford to contest it and further delay the $7,000.

“I’m not going to fight anymore,” she said. “We have already waited too long, and we are not in a financial position to wait another three months to appeal.”

A new study by academic and government researchers shows that there has been a big cost to these audits: They’ve discouraged hundreds of thousands of families who might qualify for the credit from claiming it in future years.

For poor taxpayers, the worst part of the EITC audits is usually the beginning. That’s because they almost always begin with the shock of the refund being held.

But the audits also hardly ever end well. According to data in the new study, most end without the taxpayer responding at all, and the poorer the audit target, the more likely that is to happen. Those with wage income under $10,000 per year, for instance, didn’t respond at all in 64% of the EITC audits. For those with income over $40,000 per year, that rate dipped to 35%.

The diminished response rate of the poorest taxpayers in part reflects that they are harder to reach: In 15% of those audits, the mail couldn’t be delivered. But earlier studies have also shown that many poor taxpayers don’t understand they are being audited or have trouble deciphering what the IRS is asking in its letters.

The EITC is aimed mainly at low-income workers with children. Last year, 26 million households received an average credit of about $2,500. Most EITC audits require taxpayers to dig up documents to show that a child meets the legal threshold of a “qualifying child,” a status that’s distinct from a dependent. The IRS has long blamed the law’s complexity as the main reason taxpayers may incorrectly claim the credit.

Smick was among the rare audit veterans who prevailed. Taxpayers rarely win against the IRS regardless of how likely they are to qualify for the credit, according to the new study, which was done by Day Manoli, an assistant professor of economics at the University of Texas at Austin, and researchers with the IRS and Treasury Department.

The authors sliced the population of EITC recipients into categories. At one end of the spectrum were tax returns with red flags that made it almost certain they would be audited. On the other end were returns very unlikely to be audited. But, looking over time, the outcomes of those audits weren’t all that different. When those returns with red flags were audited, the taxpayers prevailed 7% of the time. The taxpayers at the other end of the spectrum — the group seemingly most likely to qualify for the credit — only prevailed 10% of the time.

The audits have a long-term impact on the lives of those who go through them, the study found. In the years after they were audited, wage earners were 68% less likely to claim the credit compared with similar taxpayers who had not been audited. They were even 14% less likely to file taxes at all.

These taxpayers surrender “benefits from potentially legitimate EITC claims,” the study authors write, and, when they fail to file taxes at all, leave money on the table in the form of other credits and withholdings.

Because the IRS conducts so many EITC audits — between 380,000 and 600,000 per year over the past decade — at the very least, hundreds of thousands of taxpayers have likely avoided claiming the credit in response to having it denied through an audit. By discouraging people from claiming the credit, the audits clash with an avowed goal of the IRS: to encourage people to claim it. About a fifth of those eligible for the credit don’t claim it, and the IRS runs education campaigns to increase uptake.

EITC recipients are audited at such a high rate in part because Republicans in Congress have long pressured the IRS to reduce incorrect payments of the credit.

The IRS estimates that there was about $18 billion in incorrect claims in 2018. In most contexts, $18 billion is a big number, but when compared with the full scope of unpaid taxes, which likely total more than $600 billion each year, it’s not so big.

And while that $18 billion number, which Republicans touted as a “big problem” in the April hearing, is often cast as a kind of government waste, the study shows things are far more complicated.

In the years following an audit, the study found, children who were claimed on one taxpayer’s return often were claimed on a different taxpayer’s return. In other words, the kids might have just been claimed on the wrong return, and if that’s the case, the money should have been paid out, just to someone else.

The authors distinguish between the $18 billion in “gross overpayments” of the credit, which would include such misdirected payments, and what they call “net overpayments,” money that shouldn’t have been paid out at all. The “net” number, they say, could be one-third to one-half smaller than the “gross” one.

The IRS, in its statement, said the study had focused on a sample of only one type of taxpayer (single and head-of-household filers), and so the estimate of “net overpayments” should not be generalized to the entire EITC-claiming population.


Republished with permission under license from ProPublica, a Pulitzer Prize-winning investigative newsroom.

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