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.
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."
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.
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.
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 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.
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.
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 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.
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.
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.
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 immense powers of prosecutors throughout the US mean that the scales are tipped against defendants — and justice itself, says a legal expert
By Jessica Brown
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.
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.
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.
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.
“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.
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.
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.
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.
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.
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.
Automation threatens to replace some workers but can grow overall employment. The one sure thing is that technology will change how we labor.
By M. Mitchell Waldrop
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.
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.
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.
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.
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.”
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.
Article By Michelle Andrews
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.
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.
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.”
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.
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.
The federal class-action claims thousands of people in Missouri were jailed because they couldn’t pay off fines. Four years after the suit was filed, the plaintiffs are still waiting, and wondering if the deck is stacked against them.
By Topher Sanders
In January 2014, Tonya DeBerry was driving through an unincorporated area of St. Louis County, Missouri, when a police officer pulled her over for having expired license plates.
After discovering that DeBerry, 51, had several outstanding traffic tickets from three jurisdictions, the officer handcuffed her and took her to jail.
To be released, she was told, she would have to pay hundreds of dollars in fines she owed the county, according to her account in a federal lawsuit. But after her family came up with the money, DeBerry wasn’t released from custody. Instead, she was handed over to the municipalities of Ferguson and Jennings, and in each city, she was told she would be released only after she paid a portion of the fines she owed them, according to the lawsuit.
It was as if she were being held for “ransom,” her lawyer would later say.
The Supreme Court ruled almost 50 years ago that a person can’t be jailed for not being able to pay a fine. But like so many people in Missouri, DeBerry had ended up cycling through a succession of jails for that very reason, caught up in what critics have called modern-day “debtors prisons,” used by towns to keep fines flowing into municipal coffers.
“It’s a cat-and-mouse game,” said her daughter, Allison Nelson, who has also spent time in jail for not being able to pay traffic fines.
If DeBerry and her family were exasperated by the heavy-handed collection efforts, they would learn how hard it would be to hold the authorities accountable, especially in Ferguson, even after the killing of Michael Brown later that year drew national attention to the city’s troubled criminal justice system.
The city slowly stopped jailing people for not being able to pay fines as the news media showed the victims were primarily black and the Justice Department made clear that what Ferguson had been doing was wrong. But four years after a federal class-action suit was filed against the city on behalf of thousands of people who claimed they were jailed for their inability to pay fines, the plaintiffs are still waiting for redress.
The city has sought to have the lawsuit dismissed, filing a succession of motions, arguing among other reasons that instead of suing the city, the plaintiffs should be suing the municipal division of the state court. All three of the motions have been denied by the judge, Audrey G. Fleissig, of the U.S. District Court in St. Louis, though one of the rulings was appealed and that took about a year to resolve.
One issue has proved to be particularly frustrating to the plaintiffs: whether the city of Ferguson is even insured for a class action.
In March 2016, the lawyer representing Ferguson sent an email to a representative of the city’s insurer, saying that the scope of the lawsuit had expanded, and that concern about the case “grew” after a similar suit was settled for what was believed to be a “substantial amount of money.”
The five-sentence email concluded with the lawyer, Peter Dunne, of the St. Louis firm Pitzer Snodgrass, saying that legal action may be necessary to resolve the question of whether the city was covered for a class action.
“We believe a DJ [declaratory judgment] suit to determine coverage may be necessary,” Dunne wrote.
Three months later, the insurance trust filed a declaratory judgment suit against Ferguson in St. Louis County Circuit Court, asking a judge to find that the city did not have insurance coverage for class actions.
Dunne’s role was not publicly known until September when St. Louis Post-Dispatch columnist Tony Messenger reported Ferguson’s allegation that Dunne had violated his duty to the city. The email documenting Dunne’s discussion of a lawsuit with the insurer was first obtained by ProPublica. Dunne, one of the firm’s principals, did not respond to requests for comment. The other principals did not respond to emails or to a call to the firm’s office.
Suggesting legal action involving his own client was a breach of legal ethics, some experts said, and the revelation has only deepened the sense among the plaintiffs and their supporters that the deck is stacked.
“No matter where the citizens of Ferguson go in the legal system, justice is really hard for them to obtain,” said Vincent Southerland, executive director of New York University School of Law’s Center on Race, Inequality and the Law. “It’s another example that we have a legal system that was not built to protect and vindicate the rights of the most vulnerable among us.”
The killing of Brown by a police officer in August 2014 and the unrest that followed thrust Ferguson into the middle of a growing national debate over race and law enforcement. But for black people in Ferguson and the surrounding North County region, racial discrimination had long defined their relationship with the local police and courts.
Even as the rest of the country moved on from Ferguson, the people seeking a judgment against the city found themselves mired in the machinations of an insular legal system and an overburdened insurance carrier.
Ferguson, a city of about 21,000 people, was insured through a cooperative of 25 municipalities called the St. Louis Area Insurance Trust, commonly referred to as SLAIT.
Messenger said the rural courts ensnared whites, while in Ferguson and elsewhere in North County, it was blacks who were victimized. “But it’s the same concept,” he said. “It’s policing on the poor, it’s jurisdictions that don’t have a tax base anymore looking to the judicial system as a fundraising tool and judges allowing themselves to be tax collectors rather than purveyors of justice.”
The trust hired Dunne to provide Ferguson’s defense of the class-action lawsuit. But his firm, Pitzer Snodgrass, was also providing the trust with legal advice on insurance coverage issues, according to a court filing by Ferguson. That set up what Ferguson said in the filing was a conflict that the city had not been made aware of.
Even if city officials wanted to settle the case, the trust claims in court filings there isn’t coverage and it won’t pay out. The insurance trust’s lawsuit will determine whether there is coverage.
Michael Downey, a law professor at Washington University in St. Louis and an expert on legal ethics, said that unless Dunne had Ferguson’s permission, Dunne should not have talked to the insurer about the possibility of a lawsuit over coverage.
“A breach of the duty of confidentiality basically to encourage a party to take action against your client is a pretty serious violation of the rules,” Downey said.
Even if Dunne thought he was conveying something that the insurer already knew, the exchange was still concerning, Downey said.
The trust, through its lawyer, declined to comment.
Michael Frisch, Georgetown University Law Center’s ethics counsel, said that, were the bar to pursue an investigation, any punishment would not be severe. A reprimand — at most, he said.
“It’s the kind of a thing that would not draw that much of a response from the bar,” Frisch said. “Lawyers tend not to get suspended for things like this.”
New York University law professor Stephen Gillers, who specializes in legal ethics, said that regardless of any punishment, Dunn’s actions are significant.
“It’s a big deal, because clients are entitled to loyalty,” he said. “If you can’t be equally loyal to both clients, then you have a conflict and you have to withdraw entirely or from one or the other client.”
For lawyers hired by insurance companies to represent policyholders, the question of who is the client was for many years unsettled ethical terrain, experts say.
Lawyers can feel a sense of obligation to the insurance companies that hire them — and that can provide a steady stream of business — said William Barker, co-author of “Professional Responsibilities of Insurance Defense Counsel.”
Barker, a Chicago lawyer with the firm Dentons, said that until the 1970s, lawyers hired by insurance companies to represent a policyholder typically thought of the company as their chief client. But a series of court decisions since then established that the lawyer owes undivided loyalty to the policyholder, and that is why the lawyer’s actions in the Ferguson case appear to be troubling, Barker said. “That’s something that the defense lawyer ought not to be doing,” he said. “The lawyer who is handling the defense ought not to be involved, certainly in advising the insurance company on coverage issues.”
Michael-John Voss, a lawyer for the ArchCity Defenders, the civil rights group that brought the lawsuit against Ferguson, expects to case to drag into 2020.
“The relief and the remedy has been a long time coming, and there’s no clear end in sight,” he said. “And it reemphasized to me the way that these larger structures are put in place to avoid accountability and to perpetuate a system of social control.”
ProPublica asked the insurance trust if it had instructed Dunne to act as he did, but the trust’s lawyer said the organization would not answer any of ProPublica’s questions because of the ongoing lawsuits.
The insurance cooperative was created in the 1980s to help small St. Louis-area municipalities share the cost of liability insurance and health care. The arrangement worked for the occasional slip-and-fall claim and other routine municipal litigation. But it has not held up well in the face of payouts to cops injured on duty and for actions by the police and the courts.
Most notably, the trust paid $1.5 million to Brown’s family in 2017 to settle a wrongful death claim against Ferguson. But that was hardly the only big hit in recent years. In 2016, a jury awarded $3 million to the family of Jason Moore, an unarmed 31-year-old man, who died after a Ferguson police officer delivered several shots from a Taser.
A state audit released in February showed the organization’s fund balance dropped to $3.8 million in 2018 from $12.2 million in 2016. Like many insurers, the trust also has its own coverage, known as reinsurance, and it turned to those carriers to help with the Moore verdict. But the companies have told the trust that they won’t cover the judgment in the Moore case because the companies allege the trust improperly notified them of the claim. The trust is suing the companies.
Dunne and his firm are no longer working on the Ferguson case. The firm was disqualified by the judge after it hired a lawyer from the ArchCity Defenders who represented one of the lawsuit’s plaintiffs in court.
De’carlon Seewood, who stepped down in March after three and a half years as Ferguson’s city manager, said resolving the lawsuit will help the community move beyond the abuses and the notoriety that came with them.
“It is important to kind of move forward and show that new face, that better face,” Seewood said this year, before he left Ferguson to become the city manager in Fairburn, Georgia, just outside Atlanta. Jeffrey Blume, Ferguson’s interim city manager, directed questions to the city’s attorney, who declined to answer.
Seewood said the city had hoped the insurance trust would take care of the settlement the way the insurer for the city of Jennings had. But Jennings was in a very different position. Its insurer was Travelers, the country’s sixth-largest property and casualty insurer. By contrast, the insurance trust is a small cooperative with dwindling funds.
“The insurance [trust] looked at the enormity of what’s being asked and they said that’s it’s outside their [coverage] of the city, and so the city finds itself fighting with its insurance company about [coverage],” Seewood said.
According to a memo written by the trust’s claims administrator, the plaintiffs originally asked for $27.5 million but during mediation in April 2016 reduced the demand to $9.5 million. That amount is what the plaintiffs believe, based on the policies, is the total coverage limit of Ferguson’s insurance.
Alexandra Lahav, a professor at the University of Connecticut School of Law and an expert in civil litigation, said a case like this typically would be resolved in about two years and said the insurance dispute was slowing the process.
“This really shouldn’t be a very complicated class action,” Lahav said.
Lisa Soronen, executive director for the State and Local Legal Center, a Washington organization that supports states and local governments in legal disputes that rise to the U.S. Supreme Court, said the dispute between the trust and Ferguson didn’t leave the city with many sound options other than fighting the case mightily.
“As a practical matter, Ferguson’s a really small city that has no money,” she said. “If there’s no insurance coverage and there’s a huge judgment, I don’t know how it would pay.”
John Rappaport, a professor at the University of Chicago Law School who has studied the impact insurance can have on police practices and policies, said insurance trusts have a reputation for being less likely than commercial insurers to settle cases involving police officers.
“The risk pools or the trusts, they see themselves as extensions of the cities themselves,” he said. “Their reluctance to settle litigation against the police would seem [to be] a kind of loyalty to their members — their cities.”
Rappaport said commercial insurers often see the issues as purely a matter of dollars and cents.
“Whereas if the city either is in a risk pool or the city represents itself, they see it as more of like a moral issue, like we have to stand up for our officers,” he said.
Even after the Ferguson suit is resolved, litigation in Missouri over “debtors prison” practices won’t be. ArchCity Defenders has lawsuits pending in six other cities, with more in the pipeline stretching beyond North County.
DeBerry, the Ferguson woman who was a named plaintiff in the Ferguson class action, was also a plaintiff in the lawsuit against neighboring Jennings, which settled for $4.8 million less than a year and a half after the suit was filed.
But the suit in Ferguson has dragged on longer than DeBerry could wait.
She died in April 2018.
“And now she will never even get a piece of this justice because she’s no longer here,” said Nelson, her daughter. “That’s sad, that’s really sad. It’s actually pathetic because it should have never come to that. It hurts.”
Republished with permission under license from ProPublica, a Pulitzer Prize-winning investigative newsroom.