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Every year, millions try to navigate US courts without a lawyer
Judge Richard A. Posner, a legendary judicial figure, retired abruptly last month to make a point: People without lawyers are mistreated in the American legal system.
In one of his final opinions as a judge on the United States Court of Appeals for the Seventh Circuit, he expressed frustration at the dismissal of one self-represented litigant’s lawsuit, writing that the prisoner, Michael Davis, “needs help – needs it bad – needs a lawyer desperately.”
Unfortunately, Davis’s circumstances are far from unique. Many lower-income people have no lawyer to help them navigate the legal system, either in civil or criminal cases.
Eighty percent of state criminal defendants cannot afford to pay for a lawyer, and only those who are actually incarcerated are constitutionally entitled to appointed counsel. Many people facing misdemeanor charges can, if convicted, be subjected to significant fines and fees, or face the loss of benefits (including housing) or deportation. Yet, they have no right to an attorney, and those who cannot afford a lawyer will go without one.
Unlike in the criminal context, there’s no federal constitutional right to counsel in civil cases. Civil cases can involve a range of critical issues, including housing, public benefits, child custody and domestic violence. And while some civil litigants may be entitled to counsel in certain jurisdictions, in most of these cases, people who cannot afford a lawyer will be forced to go it alone. Doing so may mean that they fail to make it through the process, have their case dismissed or lose what otherwise would have been a winning case.
As directors of the Center for Access to Justice at Georgia State University College of Law, we agree with Judge Posner. People like Michael Davis desperately need help. Without legal assistance, their issues will likely be unresolved or, worse, wrongly resolved against them.
In some states, as many as 80 to 90 percent of litigants are unrepresented, even though their opponent has a lawyer. The number of these “pro se litigants” has risen substantially in the last decade, due in part to the economic downturn and the relationship between poor economic conditions and issues like housing and domestic relations.
The Legal Services Corporation, the single largest funder of civil legal aid for low-income Americans in the nation, reported in June that 86 percent of low-income Americans receive inadequate or no professional legal help for the civil legal problems they face. Here in Georgia, state courts heard more than 800,000 cases involving self-represented litigants in 2016 alone.
In some types of cases, not having counsel can make a dramatic difference. Take the example of low-income tenants facing eviction. Across the county, roughly 90 percent of landlords are represented by counsel, while 90 percent of tenants are not. Simply having a lawyer increases the odds of being able to stay in one’s home. When tenants represent themselves in New York City, they are evicted in nearly 50 percent of cases. With a lawyer, they win 90 percent of the time.
Navigating the system
Why is having a lawyer so important? The reality is that even the most mundane legal matters can require dozens of steps and complex maneuvering.
In one study, researchers identified almost 200 discrete tasks that self-represented litigants must perform in civil cases – from finding the right court to interpreting the law, filing motions, compiling evidence and negotiating a settlement. Some of these tasks require specialized knowledge of the law and of the court system. Almost all require time away from work and caring for children. Many also require the ability to get to the courthouse, to read and to speak English or access a translator.
The Access to Justice Lab at Harvard Law School has also tracked how labyrinthine the justice system can be. Just starting a routine process – like establishing a legal guardian for a minor – can take many steps, and even these can vary in unexpected ways, given the natural variation among judges and the particulars of a specific case.
Regardless of the type of case, missing just one step could mean you have to start the process all over again or even cause the case to be dismissed, sometimes without the option to refile.
People often quip that there are far too many lawyers. Yet the reality is that, while there are a lot of lawyers in certain geographic areas and certain specialties, in many rural areas – sometimes referred to as “legal deserts” – there are actually far too few lawyers.
Our center recently published a map of Georgia’s legal deserts. In our state, there are five counties without any lawyers at all and another 59 with 10 lawyers or fewer.
To make matters worse, in many of those counties, public transportation and internet access are sparse, and a significant percentage of the population doesn’t even have access to a vehicle.
The Self-Represented Litigation Network, a nonprofit focused on reforming the system to help those representing themselves, has also used mapping tools to depict how access to the justice system can vary across the country and sometimes even within the same state.
Changing the statistics
So, what do we do about the fact that the legal system is, for many people without a lawyer, nearly impossible to navigate? We believe that it will take a variety of different approaches to solve this issue.
In Washington, nonlawyers can be trained and licensed to offer legal support to those unable to afford the services of an attorney.
Still others, like Self-Represented Litigation Network founder Richard Zorza, emphasize simplification of legal processes, including changing or eliminating the procedural and evidentiary rules that make the process so difficult. For example, the Tennessee Supreme Court has approved plain-language forms and instructions, written at a fifth- to eighth-grade reading level, for use in uncontested divorces between parties with minor children.
Which approach is best? It may depend on the case – and an effective solution will include a combination of the above. Some cases will require nothing less than full-service representation by a lawyer, while in other contexts, streamlined procedures and simpler forms may be sufficient for pro se litigants to get a fair shake.
Whatever the solution, the problem is clear: Self-represented litigants’ grievances are real and, for too many, justice is out of reach.
According to the St. Louis Post Dispatch, the City of St. Louis is forcing homeless people in tents near the Biddle House, the City's Homeless shelter, to move.
The City plans to seize tents and any other property of the homeless on October 27 at 10 am per a notice.
The City of St. Louis has a history of attacking people at their weakest moment. Kicking a man when he's down, defies basic humanitarian code of ethics, and detract from the reputation of the City. A homeless man in St. Louis explains how he ended up on the street and talks about what it's like to be homeless.
The City of St. Louis may be violating the 8th amendment which states, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." In a similar case, Bell v. City of Boise, the Department of Justice (DOJ) filed a Statement of Interest (SOI) arguing that, where shelter space is unavailable, compliance with these ordinances has become impossible for the homeless, such that their “enforcement . . . amounts to the criminalization of homelessness, in violation of the Eighth Amendment.”
Writing for the DOJ, Civil Rights Division Attorney Sharon Brett noted, “When adequate shelter space exists, individuals have a choice about whether or not to sleep in public. However, when adequate shelter space does not exist, there is no meaningful distinction between the status of being homeless and the conduct of sleeping in public. Sleeping is a life-sustaining activity — i.e., it must occur at some time in some place. If a person literally has nowhere else to go, then enforcement of the anti-camping ordinance against that person criminalizes her for being homeless.”
In 2006, the Boise City Council passed an ordinance prohibiting “disorderly conduct,” which was defined to include, among other things, sleeping in public without the permission of the owner or person in control of the space. In 2009, it passed another ordinance criminalizing “camping” — “the use of public property as a temporary or permanent place of dwelling . . . or as a living accommodation at any time between sunset and sunrise . . . .” That same year, several individuals who either were or had been homeless in Boise and who had been cited or arrested for violating one or both of these ordinances, filed suit in the U.S. District Court for the District of Idaho. They alleged that the City’s enforcement of the Camping and Sleeping Ordinances against the homeless violated the Eighth Amendment’s prohibition on cruel and unusual punishment.
The DOJ urged the court to adopt the reasoning of Jones v. City of Los Angeles, where the Ninth Circuit held unconstitutional the enforcement of a Los Angeles ordinance that criminalized sitting, lying, or sleeping in public when there was inadequate shelter space. The Boise case was dismissed on standing grounds but it continues to have a profound impact on the criminalization of homelessness and particularly on the enforcement of camping bans by local municipalities.
The City of St. Louis does not have adequate space to house the homeless and recently forced the closure of New Life Evangelistic Center which provided homeless shelter for decades. The City of St. Louis is probably creating and enforcing ordinances that illegally infringe on the constitutional rights of homeless people. It's just a matter of time before someone files a federal lawsuit against the City.
It's time we got serious about pulling our money out of incarceration and putting it into systems that foster healthy communities. Hundreds of thousands of people are locked up not because of any dangerous behavior, but because of problems like mental illness, substance use disorders, and homelessness, which should be dealt with outside the criminal justice system. Services like drug treatment and affordable housing cost less and can have a better record of success.
See what happened when two Rams football players spent 24 hours homeless in St. Louis.
Instead of criminalizing behavior necessary for survival, maybe the City of St. Louis could adopt a house first model that focuses on providing housing. Housing First is an approach to quickly and successfully connect individuals and families experiencing homelessness to permanent housing without preconditions and barriers to entry, such as sobriety, treatment or service participation requirements. Other cities have found it's much cheaper to provide housing than to criminalize the homeless. The State of Utah reduced its homeless population by 91% by implementing housing first and saved money in the process.
Since the September 15th, Jason Stockley verdict, peaceful protest and civil disobedience have been taking place around St. Louis. The St. Louis protest and the protest during the National Anthem by NFL players have raised questions about protest and the rights of protesters. In St. Louis, activist have blocked streets and highways in protest of police killings.
Is it legal to block traffic during protest?
No, blocking traffic is not legal. The First Amendment guarantees the right to assemble and the right to free speech and expression; however, there are limits on those rights. Generally, local and state governments can and do restrict the time, place, and manner of protest. Protester engage in civil disobedience when they block traffic. Civil disobedience is the active, professed refusal to obey certain laws, demands, and commands of a government. Although, the process has existed since ancient times, Henry David Thoreau popularized the term with the 1849 essay, "Civil Disobedience".
For example, in residential areas, reasonable restrictions may be place regarding noise and time. During the first night of the Stockley protest, protesters assembled near Mayor Lyda Kresons home which was vandalized. Even when you agree with the protester's cause, you probably don't want your sleep disturb because people are protesting late at night or early in the moring; at that point protest rights conflict with disturbance of the peace.
In a video below, Martin Luther King Jr. speaks about civil disobedience.
Compiled from various ACLU documents concerning protest rights
Can my free speech be restricted because of what I say—even if it is controversial?
No. The First Amendment prohibits restrictions based on the content of speech. However, this does not mean that the Constitution completely protects all types of free speech activity in every circumstance. Police and government officials are allowed to place certain nondiscriminatory and narrowly drawn "time, place and manner" restrictions on the exercise of First Amendment rights. Any such restrictions must apply to all speech regardless of its point of view.
Where can I engage in free speech activity?
Generally, all types of expression are constitutionally protected in traditional "public forums" such as streets, sidewalks and parks. In addition, your speech activity may be permitted to take place at other public locations that the government has opened up to similar speech activities, such as the plazas in front of government buildings.
What about free speech activity on private property?
The general rule is that the owners of private property may set rules limiting your free speech. If you disobey the property owner's rules, they can order you off their property (and have you arrested for trespassing if you do not comply).
Is civil disobedience constitutionally protected?
No. Civil disobedience – peaceful, but unlawful, activities as a form of protest – can legally be (and often is) prosecuted. You may be arrested. Make arrangements with a lawyer in advance.
What should I do if I am ordered to disperse?
Missouri’s “Refusal to Disperse” Law is speech protective. No police officer should give an order to “disperse” unless someone is at a “riot” or “the scene of an unlawful assembly” (i.e., “six or more people assemble and agree to violate criminal laws with force or violence”). If you are at such a scene, you must first be given an order to disperse. You must obey such an order. If you do not do so, you may be arrested, even if you are not committing acts of violence.
Do I need a permit before I engage in free speech activity?
Not usually. However, certain types of events require permits. Generally, these events are:
A march or parade that does not stay on the sidewalk, and other events that require blocking traffic or street closure
A large rally requiring the use of sound amplifying devices; or
A rally at certain designated parks or plazas Many permit procedures require that the application be filed several weeks in advance of the event.
However, the First Amendment prohibits such an advance notice requirement from being used to prevent rallies or demonstrations that are rapid responses to unforeseeable and recent events. Also, many permit ordinances give a lot of discretion to the police or city officials to impose conditions on the event, such as the route of a march or the sound levels of amplification equipment. Such restrictions may violate the First Amendment if they are unnecessary for traffic control or public safety, or if they interfere significantly with effective communication with the intended audience. A permit cannot be denied because the event is controversial or will express unpopular views.
If organizers have not obtained a permit, where can a march take place?
If marchers stay on the sidewalks and obey traffic and pedestrian signals, their activity is constitutionally protected even without a permit. Marchers may be required to allow enough space on the sidewalk for normal pedestrian traffic and may not maliciously obstruct or detain passers-by.
May I distribute leaflets and other literature on public sidewalks?
Yes. You may approach pedestrians on public sidewalks with leaflets, newspapers, petitions and solicitations for donations without a permit. Tables may also be set up on sidewalks for these purposes if sufficient room is left for pedestrians to pass. These types of free speech activities are legal as long as entrances to buildings are not blocked and passers-by are not physically and maliciously detained. However, a permit may be required to set up a table.
Do I have a right to picket on public sidewalks?
Yes, and this is also an activity for which a permit is not required. However, picketing must be done in an orderly, non-disruptive fashion so that pedestrians can pass by and entrances to buildings are not blocked.
Can government impose a financial charge on exercising free speech rights?
Some local governments have required a fee as a condition of exercising free speech rights, such as application fees, security deposits for clean-up, or charges to cover overtime police costs. Charges that cover actual administrative costs have been permitted by some courts. However, if the costs are greater because an event is controversial (or a hostile crowd is expected)—such as requiring a large insurance policy—then the courts will not permit it. Also, regulations with financial requirements should include a waiver for groups that cannot afford the charge, so that even grassroots organizations can exercise their free speech rights. Therefore, a group without significant financial resources should not be prevented from engaging in a march simply because it cannot afford the charges the City would like to impose.
Do counter-demonstrators have free speech rights?
Yes. Although counter-demonstrators should not be allowed to physically disrupt the event they are protesting, they do have the right to be present and to voice their displeasure. Police are permitted to keep two antagonistic groups separated but should allow them to be within the general vicinity of one another.
Does it matter if other speech activities have taken place at the same location?
Yes. The government cannot discriminate against activities because of the controversial content of the message. Thus, if you can show that similar events to yours have been permitted in the past (such as a Veterans or Memorial Day parade), then that is an indication that the government is involved in selective enforcement if they are not granting you a permit.
What other types of free speech activity are constitutionally protected?
The First Amendment covers all forms of communication including music, theater, film and dance. The Constitution also protects actions that symbolically express a viewpoint. Examples of these symbolic forms of speech include wearing masks and costumes or holding a candlelight vigil. However, symbolic acts and civil disobedience that involve illegal conduct may be outside the realm of constitutional protections and can sometimes lead to arrest and conviction. Therefore, while sitting in a road may be expressing a political opinion, the act of blocking traffic may lead to criminal punishment.
What should I do if my rights are being violated by a police officer?
It rarely does any good to argue with a street patrol officer. Ask to talk to a supervisor and explain your position to him or her. Point out that you are not disrupting anyone else's activity and that the First Amendment protects your actions. If you do not obey an officer, you might be arrested and taken from the scene. You should not be convicted if a court concludes that your First Amendment rights have been violated.
Can I record or photograph police in public?
Can police legally attend a protest undercover?
Yes. And you should be aware that they may try to attend planning meetings to learn about plans for illegal activity.
Can police search demonstrators?
If police have reasonable suspicion that you are involved in or about to commit criminal activity, they can frisk your outer clothing to search for weapons.
Can police search bags and containers without probable cause?
Yes, if you are entering what has been marked a secure area. But you can refuse and should be allowed to leave. Otherwise, police can only search bags if they have probable cause that it contains contraband, weapons or evidence of illegal activity.
For additional protest related information see the following:
I heartily accept the motto, "That government is best which governs least"; and I should like to see it acted up to more rapidly and systematically. Carried out, it finally amounts to this, which also I believe- "That government is best which governs not at all"; and when men are prepared for it, that will be the kind of government which they will have. Government is at best but an expedient; but most governments are usually, and all governments are sometimes, inexpedient. The objections which have been brought against a standing army, and they are many and weighty, and deserve to prevail, may also at last be brought against a standing government. The standing army is only an arm of the standing government. The government itself, which is only the mode which the people have chosen to execute their will, is equally liable to be abused and perverted before the people can act through it. Witness the present Mexican war, the work of comparatively a few individuals using the standing government as their tool; for, in the outset, the people would not have consented to this measure.
This American government- what is it but a tradition, though a recent one, endeavoring to transmit itself unimpaired to posterity, but each instant losing some of its integrity? It has not the vitality and force of a single living man; for a single man can bend it to his will. It is a sort of wooden gun to the people themselves. But it is not the less necessary for this; for the people must have some complicated machinery or other, and hear its din, to satisfy that idea of government which they have. Governments show thus how successfully men can be imposed on, even impose on themselves, for their own advantage. It is excellent, we must all allow. Yet this government never of itself furthered any enterprise, but by the alacrity with which it got out of its way. It does not keep the country free. It does not settle the West. It does not educate. The character inherent in the American people has done all that has been accomplished; and it would have done somewhat more, if the government had not sometimes got in its way. For government is an expedient by which men would fain succeed in letting one another alone; and, as has been said, when it is most expedient, the governed are most let alone by it. Trade and commerce, if they were not made of india-rubber, would never manage to bounce over the obstacles which legislators are continually putting in their way; and, if one were to judge these men wholly by the effects of their actions and not partly by their intentions, they would deserve to be classed and punished with those mischievous persons who put obstructions on the railroads.
But, to speak practically and as a citizen, unlike those who call themselves no-government men, I ask for, not at once no government, but at once a better government. Let every man make known what kind of government would command his respect, and that will be one step toward obtaining it.
After all, the practical reason why, when the power is once in the hands of the people, a majority are permitted, and for a long period continue, to rule is not because they are most likely to be in the right, nor because this seems fairest to the minority, but because they are physically the strongest. But a government in which the majority rule in all cases cannot be based on justice, even as far as men understand it. Can there not be a government in which majorities do not virtually decide right and wrong, but conscience?- in which majorities decide only those questions to which the rule of expediency is applicable? Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislation? Why has every man a conscience, then? I think that we should be men first, and subjects afterward. It is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume is to do at any time what I think right. It is truly enough said that a corporation has no conscience; but a corporation of conscientious men is a corporation with a conscience. Law never made men a whit more just; and, by means of their respect for it, even the well-disposed are daily made the agents of injustice. A common and natural result of an undue respect for law is, that you may see a file of soldiers, colonel, captain, corporal, privates, powder-monkeys, and all, marching in admirable order over hill and dale to the wars, against their wills, ay, against their common sense and consciences, which makes it very steep marching indeed, and produces a palpitation of the heart. They have no doubt that it is a damnable business in which they are concerned; they are all peaceably inclined. Now, what are they? Men at all? or small movable forts and magazines, at the service of some unscrupulous man in power? Visit the Navy-Yard, and behold a marine, such a man as an American government can make, or such as it can make a man with its black arts- a mere shadow and reminiscence of humanity, a man laid out alive and standing, and already, as one may say, buried under arms with funeral accompaniments, though it may be,
"Not a drum was heard, not a funeral note,
As his corse to the rampart we hurried;
Not a soldier discharged his farewell shot
O'er the grave where our hero we buried."
The mass of men serve the state thus, not as men mainly, but as machines, with their bodies. They are the standing army, and the militia, jailers, constables, posse comitatus, etc. In most cases there is no free exercise whatever of the judgment or of the moral sense; but they put themselves on a level with wood and earth and stones; and wooden men can perhaps be manufactured that will serve the purpose as well. Such command no more respect than men of straw or a lump of dirt. They have the same sort of worth only as horses and dogs. Yet such as these even are commonly esteemed good citizens. Others- as most legislators, politicians, lawyers, ministers, and office-holders- serve the state chiefly with their heads; and, as they rarely make any moral distinctions, they are as likely to serve the devil, without intending it, as God. A very few- as heroes, patriots, martyrs, reformers in the great sense, and men- serve the state with their consciences also, and so necessarily resist it for the most part; and they are commonly treated as enemies by it. A wise man will only be useful as a man, and will not submit to be "clay," and "stop a hole to keep the wind away," but leave that office to his dust at least:
"I am too high-born to be propertied,
To be a secondary at control,
Or useful serving-man and instrument
To any sovereign state throughout the world."
He who gives himself entirely to his fellow-men appears to them useless and selfish; but he who gives himself partially to them is pronounced a benefactor and philanthropist.
How does it become a man to behave toward this American government today? I answer, that he cannot without disgrace be associated with it. I cannot for an instant recognize that political organization as my government which is the slave's government also.
All men recognize the right of revolution; that is, the right to refuse allegiance to, and to resist, the government, when its tyranny or its inefficiency are great and unendurable. But almost all say that such is not the case now. But such was the case, they think, in the Revolution Of '75. If one were to tell me that this was a bad government because it taxed certain foreign commodities brought to its ports, it is most probable that I should not make an ado about it, for I can do without them. All machines have their friction; and possibly this does enough good to counterbalance the evil. At any rate, it is a great evil to make a stir about it. But when the friction comes to have its machine, and oppression and robbery are organized, I say, let us not have such a machine any longer. In other words, when a sixth of the population of a nation which has undertaken to be the refuge of liberty are slaves, and a whole country is unjustly overrun and conquered by a foreign army, and subjected to military law, I think that it is not too soon for honest men to rebel and revolutionize. What makes this duty the more urgent is the fact that the country so overrun is not our own, but ours is the invading army.
Paley, a common authority with many on moral questions, in his chapter on the "Duty of Submission to Civil Government," resolves all civil obligation into expediency; and he proceeds to say that "so long as the interest of the whole society requires it, that is, so long as the established government cannot be resisted or changed without public inconveniency, it is the will of God… that the established government be obeyed- and no longer. This principle being admitted, the justice of every particular case of resistance is reduced to a computation of the quantity of the danger and grievance on the one side, and of the probability and expense of redressing it on the other." Of this, he says, every man shall judge for himself. But Paley appears never to have contemplated those cases to which the rule of expediency does not apply, in which a people, as well as an individual, must do justice, cost what it may. If I have unjustly wrested a plank from a drowning man, I must restore it to him though I drown myself. This, according to Paley, would be inconvenient. But he that would save his life, in such a case, shall lose it. This people must cease to hold slaves, and to make war on Mexico, though it cost them their existence as a people.
In their practice, nations agree with Paley; but does any one think that Massachusetts does exactly what is right at the present crisis?
"A drab of state, a cloth-o'-silver slut,
To have her train borne up, and her soul trail in the dirt."
Practically speaking, the opponents to a reform in Massachusetts are not a hundred thousand politicians at the South, but a hundred thousand merchants and farmers here, who are more interested in commerce and agriculture than they are in humanity, and are not prepared to do justice to the slave and to Mexico, cost what it may. I quarrel not with far-off foes, but with those who, near at home, cooperate with, and do the bidding of those far away, and without whom the latter would be harmless. We are accustomed to say, that the mass of men are unprepared; but improvement is slow, because the few are not materially wiser or better than the many. It is not so important that many should be as good as you, as that there be some absolute goodness somewhere; for that will leaven the whole lump. There are thousands who are in opinion opposed to slavery and to the war, who yet in effect do nothing to put an end to them; who, esteeming themselves children of Washington and Franklin, sit down with their hands in their pockets, and say that they know not what to do, and do nothing; who even postpone the question of freedom to the question of free trade, and quietly read the prices-current along with the latest advices from Mexico, after dinner, and, it may be, fall asleep over them both. What is the price-current of an honest man and patriot today? They hesitate, and they regret, and sometimes they petition; but they do nothing in earnest and with effect. They will wait, well disposed, for others to remedy the evil, that they may no longer have it to regret. At most, they give only a cheap vote, and a feeble countenance and God-speed, to the right, as it goes by them. There are nine hundred and ninety-nine patrons of virtue to one virtuous man. But it is easier to deal with the real possessor of a thing than with the temporary guardian of it.
All voting is a sort of gaming, like checkers or backgammon, with a slight moral tinge to it, a playing with right and wrong, with moral questions; and betting naturally accompanies it. The character of the voters is not staked. I cast my vote, perchance, as I think right; but I am not vitally concerned that that right should prevail. I am willing to leave it to the majority. Its obligation, therefore, never exceeds that of expediency. Even voting for the right is doing nothing for it. It is only expressing to men feebly your desire that it should prevail. A wise man will not leave the right to the mercy of chance, nor wish it to prevail through the power of the majority. There is but little virtue in the action of masses of men. When the majority shall at length vote for the abolition of slavery, it will be because they are indifferent to slavery, or because there is but little slavery left to be abolished by their vote. They will then be the only slaves. Only his vote can hasten the abolition of slavery who asserts his own freedom by his vote.
I hear of a convention to be held at Baltimore, or elsewhere, for the selection of a candidate for the Presidency, made up chiefly of editors, and men who are politicians by profession; but I think, what is it to any independent, intelligent, and respectable man what decision they may come to? Shall we not have the advantage of his wisdom and honesty, nevertheless? Can we not count upon some independent votes? Are there not many individuals in the country who do not attend conventions? But no: I find that the respectable man, so called, has immediately drifted from his position, and despairs of his country, when his country has more reason to despair of him. He forthwith adopts one of the candidates thus selected as the only available one, thus proving that he is himself available for any purposes of the demagogue. His vote is of no more worth than that of any unprincipled foreigner or hireling native, who may have been bought. O for a man who is a man, and, as my neighbor says, has a bone in his back which you cannot pass your hand through! Our statistics are at fault: the population has been returned too large. How many men are there to a square thousand miles in this country? Hardly one. Does not America offer any inducement for men to settle here? The American has dwindled into an Odd Fellow-one who may be known by the development of his organ of gregariousness, and a manifest lack of intellect and cheerful self-reliance; whose first and chief concern, on coming into the world, is to see that the almshouses are in good repair; and, before yet he has lawfully donned the virile garb, to collect a fund for the support of the widows and orphans that may be; who, in short, ventures to live only by the aid of the Mutual Insurance company, which has promised to bury him decently.
It is not a man's duty, as a matter of course, to devote himself to the eradication of any, even the most enormous, wrong; he may still properly have other concerns to engage him; but it is his duty, at least, to wash his hands of it, and, if he gives it no thought longer, not to give it practically his support. If I devote myself to other pursuits and contemplations, I must first see, at least, that I do not pursue them sitting upon another man's shoulders. I must get off him first, that he may pursue his contemplations too. See what gross inconsistency is tolerated. I have heard some of my townsmen say, "I should like to have them order me out to help put down an insurrection of the slaves, or to march to Mexico;- see if I would go"; and yet these very men have each, directly by their allegiance, and so indirectly, at least, by their money, furnished a substitute. The soldier is applauded who refuses to serve in an unjust war by those who do not refuse to sustain the unjust government which makes the war; is applauded by those whose own act and authority he disregards and sets at naught; as if the state were penitent to that degree that it differed one to scourge it while it sinned, but not to that degree that it left off sinning for a moment. Thus, under the name of Order and Civil Government, we are all made at last to pay homage to and support our own meanness. After the first blush of sin comes its indifference; and from immoral it becomes, as it were, unmoral, and not quite unnecessary to that life which we have made.
The broadest and most prevalent error requires the most disinterested virtue to sustain it. The slight reproach to which the virtue of patriotism is commonly liable, the noble are most likely to incur. Those who, while they disapprove of the character and measures of a government, yield to it their allegiance and support are undoubtedly its most conscientious supporters, and so frequently the most serious obstacles to reform. Some are petitioning the State to dissolve the Union, to disregard the requisitions of the President. Why do they not dissolve it themselves- the union between themselves and the State- and refuse to pay their quota into its treasury? Do not they stand in the same relation to the State that the State does to the Union? And have not the same reasons prevented the State from resisting the Union which have prevented them from resisting the State?
How can a man be satisfied to entertain an opinion merely, and enjoy it? Is there any enjoyment in it, if his opinion is that he is aggrieved? If you are cheated out of a single dollar by your neighbor, you do not rest satisfied with knowing that you are cheated, or with saying that you are cheated, or even with petitioning him to pay you your due; but you take effectual steps at once to obtain the full amount, and see that you are never cheated again. Action from principle, the perception and the performance of right, changes things and relations; it is essentially revolutionary, and does not consist wholly with anything which was. It not only divides States and churches, it divides families; ay, it divides the individual, separating the diabolical in him from the divine.
Unjust laws exist: shall we be content to obey them, or shall we endeavor to amend them, and obey them until we have succeeded, or shall we transgress them at once? Men generally, under such a government as this, think that they ought to wait until they have persuaded the majority to alter them. They think that, if they should resist, the remedy would be worse than the evil. But it is the fault of the government itself that the remedy is worse than the evil. It makes it worse. Why is it not more apt to anticipate and provide for reform? Why does it not cherish its wise minority? Why does it cry and resist before it is hurt? Why does it not encourage its citizens to be on the alert to point out its faults, and do better than it would have them? Why does it always crucify Christ, and excommunicate Copernicus and Luther, and pronounce Washington and Franklin rebels?
One would think, that a deliberate and practical denial of its authority was the only offence never contemplated by government; else, why has it not assigned its definite, its suitable and proportionate, penalty? If a man who has no property refuses but once to earn nine shillings for the State, he is put in prison for a period unlimited by any law that I know, and determined only by the discretion of those who placed him there; but if he should steal ninety times nine shillings from the State, he is soon permitted to go at large again.
If the injustice is part of the necessary friction of the machine of government, let it go, let it go: perchance it will wear smooth- certainly the machine will wear out. If the injustice has a spring, or a pulley, or a rope, or a crank, exclusively for itself, then perhaps you may consider whether the remedy will not be worse than the evil; but if it is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law. Let your life be a counter-friction to stop the machine. What I have to do is to see, at any rate, that I do not lend myself to the wrong which I condemn.
As for adopting the ways which the State has provided for remedying the evil, I know not of such ways. They take too much time, and a man's life will be gone. I have other affairs to attend to. I came into this world, not chiefly to make this a good place to live in, but to live in it, be it good or bad. A man has not everything to do, but something; and because he cannot do everything, it is not necessary that he should do something wrong. It is not my business to be petitioning the Governor or the Legislature any more than it is theirs to petition me; and if they should not bear my petition, what should I do then? But in this case the State has provided no way: its very Constitution is the evil. This may seem to be harsh and stubborn and unconciliatory; but it is to treat with the utmost kindness and consideration the only spirit that can appreciate or deserves it. So is an change for the better, like birth and death, which convulse the body.
I do not hesitate to say, that those who call themselves Abolitionists should at once effectually withdraw their support, both in person and property, from the government of Massachusetts, and not wait till they constitute a majority of one, before they suffer the right to prevail through them. I think that it is enough if they have God on their side, without waiting for that other one. Moreover, any man more right than his neighbors constitutes a majority of one already.
I meet this American government, or its representative, the State government, directly, and face to face, once a year- no more- in the person of its tax-gatherer; this is the only mode in which a man situated as I am necessarily meets it; and it then says distinctly, Recognize me; and the simplest, the most effectual, and, in the present posture of affairs, the indispensablest mode of treating with it on this head, of expressing your little satisfaction with and love for it, is to deny it then. My civil neighbor, the tax-gatherer, is the very man I have to deal with- for it is, after all, with men and not with parchment that I quarrel- and he has voluntarily chosen to be an agent of the government. How shall he ever know well what he is and does as an officer of the government, or as a man, until he is obliged to consider whether he shall treat me, his neighbor, for whom he has respect, as a neighbor and well-disposed man, or as a maniac and disturber of the peace, and see if he can get over this obstruction to his neighborliness without a ruder and more impetuous thought or speech corresponding with his action. I know this well, that if one thousand, if one hundred, if ten men whom I could name- if ten honest men only- ay, if one HONEST man, in this State of Massachusetts, ceasing to hold slaves, were actually to withdraw from this copartnership, and be locked up in the county jail therefor, it would be the abolition of slavery in America. For it matters not how small the beginning may seem to be: what is once well done is done forever. But we love better to talk about it: that we say is our mission, Reform keeps many scores of newspapers in its service, but not one man. If my esteemed neighbor, the State's ambassador, who will devote his days to the settlement of the question of human rights in the Council Chamber, instead of being threatened with the prisons of Carolina, were to sit down the prisoner of Massachusetts, that State which is so anxious to foist the sin of slavery upon her sister- though at present she can discover only an act of inhospitality to be the ground of a quarrel with her- the Legislature would not wholly waive the subject the following winter.
Under a government which imprisons any unjustly, the true place for a just man is also a prison. The proper place today, the only place which Massachusetts has provided for her freer and less desponding spirits, is in her prisons, to be put out and locked out of the State by her own act, as they have already put themselves out by their principles. It is there that the fugitive slave, and the Mexican prisoner on parole, and the Indian come to plead the wrongs of his race should find them; on that separate, but more free and honorable, ground, where the State places those who are not with her, but against her- the only house in a slave State in which a free man can abide with honor. If any think that their influence would be lost there, and their voices no longer afflict the ear of the State, that they would not be as an enemy within its walls, they do not know by how much truth is stronger than error, nor how much more eloquently and effectively he can combat injustice who has experienced a little in his own person. Cast your whole vote, not a strip of paper merely, but your whole influence. A minority is powerless while it conforms to the majority; it is not even a minority then; but it is irresistible when it clogs by its whole weight. If the alternative is to keep all just men in prison, or give up war and slavery, the State will not hesitate which to choose. If a thousand men were not to pay their tax-bills this year, that would not be a violent and bloody measure, as it would be to pay them, and enable the State to commit violence and shed innocent blood. This is, in fact, the definition of a peaceable revolution, if any such is possible. If the tax-gatherer, or any other public officer, asks me, as one has done, "But what shall I do?" my answer is, "If you really wish to do anything, resign your office." When the subject has refused allegiance, and the officer has resigned his office, then the revolution is accomplished. But even suppose blood should flow. Is there not a sort of blood shed when the conscience is wounded? Through this wound a man's real manhood and immortality flow out, and he bleeds to an everlasting death. I see this blood flowing now.
I have contemplated the imprisonment of the offender, rather than the seizure of his goods- though both will serve the same purpose- because they who assert the purest right, and consequently are most dangerous to a corrupt State, commonly have not spent much time in accumulating property. To such the State renders comparatively small service, and a slight tax is wont to appear exorbitant, particularly if they are obliged to earn it by special labor with their hands. If there were one who lived wholly without the use of money, the State itself would hesitate to demand it of him. But the rich man- not to make any invidious comparison- is always sold to the institution which makes him rich. Absolutely speaking, the more money, the less virtue; for money comes between a man and his objects, and obtains them for him; and it was certainly no great virtue to obtain it. It puts to rest many questions which he would otherwise be taxed to answer; while the only new question which it puts is the hard but superfluous one, how to spend it. Thus his moral ground is taken from under his feet. The opportunities of living are diminished in proportion as what are called the "means" are increased. The best thing a man can do for his culture when he is rich is to endeavor to carry out those schemes which he entertained when he was poor. Christ answered the Herodians according to their condition. "Show me the tribute-money," said he;- and one took a penny out of his pocket;- if you use money which has the image of Caesar on it, and which he has made current and valuable, that is, if you are men of the State, and gladly enjoy the advantages of Caesar's government, then pay him back some of his own when he demands it. "Render therefore to Caesar that which is Caesar's, and to God those things which are God's"- leaving them no wiser than before as to which was which; for they did not wish to know.
When I converse with the freest of my neighbors, I perceive that, whatever they may say about the magnitude and seriousness of the question, and their regard for the public tranquillity, the long and the short of the matter is, that they cannot spare the protection of the existing government, and they dread the consequences to their property and families of disobedience to it. For my own part, I should not like to think that I ever rely on the protection of the State. But, if I deny the authority of the State when it presents its tax-bill, it will soon take and waste all my property, and so harass me and my children without end. This is hard. This makes it impossible for a man to live honestly, and at the same time comfortably, in outward respects. It will not be worth the while to accumulate property; that would be sure to go again. You must hire or squat somewhere, and raise but a small crop, and eat that soon. You must live within yourself, and depend upon yourself always tucked up and ready for a start, and not have many affairs. A man may grow rich in Turkey even, if he will be in all respects a good subject of the Turkish government. Confucius said: "If a state is governed by the principles of reason, poverty and misery are subjects of shame; if a state is not governed by the principles of reason, riches and honors are the subjects of shame." No: until I want the protection of Massachusetts to be extended to me in some distant Southern port, where my liberty is endangered, or until I am bent solely on building up an estate at home by peaceful enterprise, I can afford to refuse allegiance to Massachusetts, and her right to my property and life. It costs me less in every sense to incur the penalty of disobedience to the State than it would to obey. I should feel as if I were worth less in that case.
Some years ago, the State met me in behalf of the Church, and commanded me to pay a certain sum toward the support of a clergyman whose preaching my father attended, but never I myself. "Pay," it said, "or be locked up in the jail." I declined to pay. But, unfortunately, another man saw fit to pay it. I did not see why the schoolmaster should be taxed to support the priest, and not the priest the schoolmaster; for I was not the State's schoolmaster, but I supported myself by voluntary subscription. I did not see why the lyceum should not present its tax-bill, and have the State to back its demand, as well as the Church. However, at the request of the selectmen, I condescended to make some such statement as this in writing:- "Know all men by these presents, that I, Henry Thoreau, do not wish to be regarded as a member of any incorporated society which I have not joined." This I gave to the town clerk; and he has it. The State, having thus learned that I did not wish to be regarded as a member of that church, has never made a like demand on me since; though it said that it must adhere to its original presumption that time. If I had known how to name them, I should then have signed off in detail from all the societies which I never signed on to; but I did not know where to find a complete list.
I have paid no poll-tax for six years. I was put into a jail once on this account, for one night; and, as I stood considering the walls of solid stone, two or three feet thick, the door of wood and iron, a foot thick, and the iron grating which strained the light, I could not help being struck with the foolishness of that institution which treated me as if I were mere flesh and blood and bones, to be locked up. I wondered that it should have concluded at length that this was the best use it could put me to, and had never thought to avail itself of my services in some way. I saw that, if there was a wall of stone between me and my townsmen, there was a still more difficult one to climb or break through before they could get to be as free as I was. I did not for a moment feel confined, and the walls seemed a great waste of stone and mortar. I felt as if I alone of all my townsmen had paid my tax. They plainly did not know how to treat me, but behaved like persons who are underbred. In every threat and in every compliment there was a blunder; for they thought that my chief desire was to stand the other side of that stone wall. I could not but smile to see how industriously they locked the door on my meditations, which followed them out again without let or hindrance, and they were really all that was dangerous. As they could not reach me, they had resolved to punish my body; just as boys, if they cannot come at some person against whom they have a spite, will abuse his dog. I saw that the State was half-witted, that it was timid as a lone woman with her silver spoons, and that it did not know its friends from its foes, and I lost all my remaining respect for it, and pitied it.
Thus the State never intentionally confronts a man's sense, intellectual or moral, but only his body, his senses. It is not armed with superior wit or honesty, but with superior physical strength. I was not born to be forced. I will breathe after my own fashion. Let us see who is the strongest. What force has a multitude? They only can force me who obey a higher law than I. They force me to become like themselves. I do not hear of men being forced to have this way or that by masses of men. What sort of life were that to live? When I meet a government which says to me, "Your money or your life," why should I be in haste to give it my money? It may be in a great strait, and not know what to do: I cannot help that. It must help itself; do as I do. It is not worth the while to snivel about it. I am not responsible for the successful working of the machinery of society. I am not the son of the engineer. I perceive that, when an acorn and a chestnut fall side by side, the one does not remain inert to make way for the other, but both obey their own laws, and spring and grow and flourish as best they can, till one, perchance, overshadows and destroys the other. If a plant cannot live according to its nature, it dies; and so a man.
The night in prison was novel and interesting enough. The prisoners in their shirt-sleeves were enjoying a chat and the evening air in the doorway, when I entered. But the jailer said, "Come, boys, it is time to lock up"; and so they dispersed, and I heard the sound of their steps returning into the hollow apartments. My room-mate was introduced to me by the jailer as "a first-rate fellow and a clever man." When the door was locked, he showed me where to hang my hat, and how he managed matters there. The rooms were whitewashed once a month; and this one, at least, was the whitest, most simply furnished, and probably the neatest apartment in the town. He naturally wanted to know where I came from, and what brought me there; and, when I had told him, I asked him in my turn how he came there, presuming him to be an honest man, of course; and, as the world goes, I believe he was. "Why," said he, "they accuse me of burning a barn; but I never did it." As near as I could discover, he had probably gone to bed in a barn when drunk, and smoked his pipe there; and so a barn was burnt. He had the reputation of being a clever man, had been there some three months waiting for his trial to come on, and would have to wait as much longer; but he was quite domesticated and contented, since he got his board for nothing, and thought that he was well treated.
He occupied one window, and I the other; and I saw that if one stayed there long, his principal business would be to look out the window. I had soon read all the tracts that were left there, and examined where former prisoners had broken out, and where a grate had been sawed off, and heard the history of the various occupants of that room; for I found that even here there was a history and a gossip which never circulated beyond the walls of the jail. Probably this is the only house in the town where verses are composed, which are afterward printed in a circular form, but not published. I was shown quite a long list of verses which were composed by some young men who had been detected in an attempt to escape, who avenged themselves by singing them.
I pumped my fellow-prisoner as dry as I could, for fear I should never see him again; but at length he showed me which was my bed, and left me to blow out the lamp.
It was like travelling into a far country, such as I had never expected to behold, to lie there for one night. It seemed to me that I never had heard the town clock strike before, nor the evening sounds of the village; for we slept with the windows open, which were inside the grating. It was to see my native village in the light of the Middle Ages, and our Concord was turned into a Rhine stream, and visions of knights and castles passed before me. They were the voices of old burghers that I heard in the streets. I was an involuntary spectator and auditor of whatever was done and said in the kitchen of the adjacent village inn- a wholly new and rare experience to me. It was a closer view of my native town. I was fairly inside of it. I never had seen its institutions before. This is one of its peculiar institutions; for it is a shire town. I began to comprehend what its inhabitants were about.
In the morning, our breakfasts were put through the hole in the door, in small oblong-square tin pans, made to fit, and holding a pint of chocolate, with brown bread, and an iron spoon. When they called for the vessels again, I was green enough to return what bread I had left; but my comrade seized it, and said that I should lay that up for lunch or dinner. Soon after he was let out to work at haying in a neighboring field, whither he went every day, and would not be back till noon; so he bade me good-day, saying that he doubted if he should see me again.
When I came out of prison- for some one interfered, and paid that tax- I did not perceive that great changes had taken place on the common, such as he observed who went in a youth and emerged a tottering and gray-headed man; and yet a change had to my eyes come over the scene- the town, and State, and country- greater than any that mere time could effect. I saw yet more distinctly the State in which I lived. I saw to what extent the people among whom I lived could be trusted as good neighbors and friends; that their friendship was for summer weather only; that they did not greatly propose to do right; that they were a distinct race from me by their prejudices and superstitions, as the Chinamen and Malays are; that in their sacrifices to humanity they ran no risks, not even to their property; that after all they were not so noble but they treated the thief as he had treated them, and hoped, by a certain outward observance and a few prayers, and by walking in a particular straight though useless path from time to time, to save their souls. This may be to judge my neighbors harshly; for I believe that many of them are not aware that they have such an institution as the jail in their village.
It was formerly the custom in our village, when a poor debtor came out of jail, for his acquaintances to salute him, looking through their fingers, which were crossed to represent the grating of a jail window, "How do ye do?" My neighbors did not thus salute me, but first looked at me, and then at one another, as if I had returned from a long journey. I was put into jail as I was going to the shoemaker's to get a shoe which was mended. When I was let out the next morning, I proceeded to finish my errand, and, having put on my mended shoe, joined a huckleberry party, who were impatient to put themselves under my conduct; and in half an hour- for the horse was soon tackled- was in the midst of a huckleberry field, on one of our highest hills, two miles off, and then the State was nowhere to be seen.
This is the whole history of "My Prisons."
I have never declined paying the highway tax, because I am as desirous of being a good neighbor as I am of being a bad subject; and as for supporting schools, I am doing my part to educate my fellow-countrymen now. It is for no particular item in the tax-bill that I refuse to pay it. I simply wish to refuse allegiance to the State, to withdraw and stand aloof from it effectually. I do not care to trace the course of my dollar, if I could, till it buys a man or a musket to shoot one with- the dollar is innocent- but I am concerned to trace the effects of my allegiance. In fact, I quietly declare war with the State, after my fashion, though I will still make what use and get what advantage of her I can, as is usual in such cases.
If others pay the tax which is demanded of me, from a sympathy with the State, they do but what they have already done in their own case, or rather they abet injustice to a greater extent than the State requires. If they pay the tax from a mistaken interest in the individual taxed, to save his property, or prevent his going to jail, it is because they have not considered wisely how far they let their private feelings interfere with the public good.
This, then, is my position at present. But one cannot be too much on his guard in such a case, lest his action be biased by obstinacy or an undue regard for the opinions of men. Let him see that he does only what belongs to himself and to the hour.
I think sometimes, Why, this people mean well, they are only ignorant; they would do better if they knew how: why give your neighbors this pain to treat you as they are not inclined to? But I think again, This is no reason why I should do as they do, or permit others to suffer much greater pain of a different kind. Again, I sometimes say to myself, When many millions of men, without heat, without ill will, without personal feeling of any kind, demand of you a few shillings only, without the possibility, such is their constitution, of retracting or altering their present demand, and without the possibility, on your side, of appeal to any other millions, why expose yourself to this overwhelming brute force? You do not resist cold and hunger, the winds and the waves, thus obstinately; you quietly submit to a thousand similar necessities. You do not put your head into the fire. But just in proportion as I regard this as not wholly a brute force, but partly a human force, and consider that I have relations to those millions as to so many millions of men, and not of mere brute or inanimate things, I see that appeal is possible, first and instantaneously, from them to the Maker of them, and, secondly, from them to themselves. But if I put my head deliberately into the fire, there is no appeal to fire or to the Maker of fire, and I have only myself to blame. If I could convince myself that I have any right to be satisfied with men as they are, and to treat them accordingly, and not according, in some respects, to my requisitions and expectations of what they and I ought to be, then, like a good Mussulman and fatalist, I should endeavor to be satisfied with things as they are, and say it is the will of God. And, above all, there is this difference between resisting this and a purely brute or natural force, that I can resist this with some effect; but I cannot expect, like Orpheus, to change the nature of the rocks and trees and beasts.
I do not wish to quarrel with any man or nation. I do not wish to split hairs, to make fine distinctions, or set myself up as better than my neighbors. I seek rather, I may say, even an excuse for conforming to the laws of the land. I am but too ready to conform to them. Indeed, I have reason to suspect myself on this head; and each year, as the tax-gatherer comes round, I find myself disposed to review the acts and position of the general and State governments, and the spirit of the people, to discover a pretext for conformity.
"We must affect our country as our parents,
And if at any time we alienate
Our love or industry from doing it honor,
We must respect effects and teach the soul
Matter of conscience and religion,
And not desire of rule or benefit."
I believe that the State will soon be able to take all my work of this sort out of my hands, and then I shall be no better a patriot than my fellow-countrymen. Seen from a lower point of view, the Constitution, with all its faults, is very good; the law and the courts are very respectable; even this State and this American government are, in many respects, very admirable, and rare things, to be thankful for, such as a great many have described them; but seen from a point of view a little higher, they are what I have described them; seen from a higher still, and the highest, who shall say what they are, or that they are worth looking at or thinking of at all?
However, the government does not concern me much, and I shall bestow the fewest possible thoughts on it. It is not many moments that I live under a government, even in this world. If a man is thought-free, fancy-free, imagination-free, that which is not never for a long time appearing to be to him, unwise rulers or reformers cannot fatally interrupt him.
I know that most men think differently from myself; but those whose lives are by profession devoted to the study of these or kindred subjects content me as little as any. Statesmen and legislators, standing so completely within the institution, never distinctly and nakedly behold it. They speak of moving society, but have no resting-place without it. They may be men of a certain experience and discrimination, and have no doubt invented ingenious and even useful systems, for which we sincerely thank them; but all their wit and usefulness lie within certain not very wide limits. They are wont to forget that the world is not governed by policy and expediency. Webster never goes behind government, and so cannot speak with authority about it. His words are wisdom to those legislators who contemplate no essential reform in the existing government; but for thinkers, and those who legislate for all time, he never once glances at the subject. I know of those whose serene and wise speculations on this theme would soon reveal the limits of his mind's range and hospitality. Yet, compared with the cheap professions of most reformers, and the still cheaper wisdom and eloquence of politicians in general, his are almost the only sensible and valuable words, and we thank Heaven for him. Comparatively, he is always strong, original, and, above all, practical. Still, his quality is not wisdom, but prudence. The lawyer's truth is not Truth, but consistency or a consistent expediency. Truth is always in harmony with herself, and is not concerned chiefly to reveal the justice that may consist with wrong-doing. He well deserves to be called, as he has been called, the Defender of the Constitution. There are really no blows to be given by him but defensive ones. He is not a leader, but a follower. His leaders are the men of '87- "I have never made an effort," he says, "and never propose to make an effort; I have never countenanced an effort, and never mean to countenance an effort, to disturb the arrangement as originally made, by which the various States came into the Union." Still thinking of the sanction which the Constitution gives to slavery, he says, "Because it was a part of the original compact- let it stand." Notwithstanding his special acuteness and ability, he is unable to take a fact out of its merely political relations, and behold it as it lies absolutely to be disposed of by the intellect- what, for instance, it behooves a man to do here in America today with regard to slavery- but ventures, or is driven, to make some such desperate answer as the following, while professing to speak absolutely, and as a private man- from which what new and singular code of social duties might be inferred? "The manner," says he, "in which the governments of those States where slavery exists are to regulate it is for their own consideration, under their responsibility to their constituents, to the general laws of propriety, humanity, and justice, and to God. Associations formed elsewhere, springing from a feeling of humanity, or any other cause, have nothing whatever to do with it. They have never received any encouragement from me, and they never will."
They who know of no purer sources of truth, who have traced up its stream no higher, stand, and wisely stand, by the Bible and the Constitution, and drink at it there with reverence and humility; but they who behold where it comes trickling into this lake or that pool, gird up their loins once more, and continue their pilgrimage toward its fountain-head.
No man with a genius for legislation has appeared in America. They are rare in the history of the world. There are orators, politicians, and eloquent men, by the thousand; but the speaker has not yet opened his mouth to speak who is capable of settling the much-vexed questions of the day. We love eloquence for its own sake, and not for any truth which it may utter, or any heroism it may inspire. Our legislators have not yet learned the comparative value of free trade and of freedom, of union, and of rectitude, to a nation. They have no genius or talent for comparatively humble questions of taxation and finance, commerce and manufactures and agriculture. If we were left solely to the wordy wit of legislators in Congress for our guidance, uncorrected by the seasonable experience and the effectual complaints of the people, America would not long retain her rank among the nations. For eighteen hundred years, though perchance I have no right to say it, the New Testament has been written; yet where is the legislator who has wisdom and practical talent enough to avail himself of the light which it sheds on the science of legislation?
The authority of government, even such as I am willing to submit to- for I will cheerfully obey those who know and can do better than I, and in many things even those who neither know nor can do so well- is still an impure one: to be strictly just, it must have the sanction and consent of the governed. It can have no pure right over my person and property but what I concede to it. The progress from an absolute to a limited monarchy, from a limited monarchy to a democracy, is a progress toward a true respect for the individual. Even the Chinese philosopher was wise enough to regard the individual as the basis of the empire. Is a democracy, such as we know it, the last improvement possible in government? Is it not possible to take a step further towards recognizing and organizing the rights of man? There will never be a really free and enlightened State until the State comes to recognize the individual as a higher and independent power, from which all its own power and authority are derived, and treats him accordingly. I please myself with imagining a State at least which can afford to be just to all men, and to treat the individual with respect as a neighbor; which even would not think it inconsistent with its own repose if a few were to live aloof from it, not meddling with it, nor embraced by it, who fulfilled all the duties of neighbors and fellow-men. A State which bore this kind of fruit, and suffered it to drop off as fast as it ripened, would prepare the way for a still more perfect and glorious State, which also I have imagined, but not yet anywhere seen.
“A library outranks any other one thing a community can do to benefit its people. It is a never failing spring in the desert.” – Andrew Carnegie
By Arlene Weismantel, Michigan State University
The same ethos that turned Andrew Carnegie into one of the biggest philanthropists of all time made him a fervent proponent of taxing big inheritances. As the steel magnate wrote in his seminal 1899 essay, The Gospel of Wealth:
“Of all forms of taxation this seems the wisest. By taxing estates heavily at death the State marks its condemnation of the selfish millionaire’s unworthy life.”
Carnegie argued that handing large fortunes to the next generation wasted money, as it was unlikely that descendants would match the exceptional abilities that had created the wealth into which they were born. He also surmised that dynasties harm heirs by robbing their lives of purpose and meaning.
He practiced what he preached and was still actively giving in 1911 after he had already given away 90 percent of his wealth to causes he cared passionately about, especially libraries. As a pioneer of the kind of large-scale American philanthropy now practiced by the likes of Bill Gates and George Soros, he espoused a philosophy that many of today’s billionaires who want to leave their mark through good works are still following.
A modest upbringing
The U.S. government had taxed estates for brief periods ever since the days of the Founders, but the modern estate tax took root only a few years before Carnegie died in 1919.
That was one reason why the great philanthropist counseled his fellow ultra-wealthy Americans to give as much of their money away as they could to good causes – including the one he revolutionized: public libraries. As a librarian who has held many leadership roles in Michigan, where Carnegie funded the construction of 61 libraries, I am always mindful of his legacy.
Carnegie’s modest upbringing helped inspire his philanthropy, which left its mark on America’s cities large and small. After mechanization had put his father out of work, Carnegie’s family immigrated from Dunfermline, Scotland, to the U.S. in 1848, where they settled in Allegheny, Pennsylvania.
The move ended his formal education, which had begun when he was eight years old. Carnegie, then 13, went to work as a bobbin boy in a textile factory to help pay the family’s bills. He couldn’t afford to buy books and he had no way to borrow them in a country that would have 637 public libraries only half a century later.
In 1850, Carnegie, by then working as a messenger, learned that iron manufacturer Colonel James Anderson let working boys visit his 400-volume library on Saturdays. Among those books, “the windows were opened in the walls of my dungeon through which the light of knowledge streamed in,” Carnegie wrote, explaining how the experience both thrilled him and changed his life.
Books kept him and other boys “clear of low fellowship and bad habits,” Carnegie said later. He called that library the source of his largely informal education.
Carnegie eventually built a monument to honor Anderson. The inscription credits Anderson with founding free libraries in western Pennsylvania and opening “the precious treasures of knowledge and imagination through which youth may ascend.”
Carnegie believed in exercising discretion and care with charitable largess. People who became too dependent on handouts were unwilling to improve their lot in life and didn’t deserve them, in his opinion. Instead, he sought to “use wealth so as to be really beneficial to the community.”
For the industrial titan, that meant supporting the institutions that empower people to pull themselves up by their bootstraps like universities, hospitals and, above all, libraries.
In Carnegie’s view, “the main consideration should be to help those who will help themselves.” Free libraries were, in Carnegie’s opinion, among the best ways to lend a hand to anyone who deserved it.
Carnegie built 2,509 libraries in the late 19th and early 20th centuries, 1,679 of them across the U.S. in nearly every state. All told, he spent US$55 million of his wealth on libraries. Adjusted for inflation, that would top $1.3 billion today.
Some were grand but about 70 percent of these libraries served towns of less than 10,000 and cost less than $25,000 (at that time) to build.
A lasting legacy
Through Carnegie’s philanthropy, libraries became pillars of civic life and the nation’s educational system.
More than 770 of the original Carnegie libraries still function as public libraries today and others are landmarks housing museums or serving other public functions. More importantly, the notion that libraries should provide everyone with the opportunity to freely educate and improve themselves is widespread.
I believe that Carnegie would be impressed with how libraries have adapted to carry out his cherished mission of helping people rise by making computers available to those without them, hosting job fairs and offering resume assistance among other services.
Public libraries in Michigan, for example, host small business resource centers, hold seminars and provide resources for anyone interested in starting their own businesses. The statewide Michigan eLibrary reinforces this assistance through its online offerings.
Outside of government, Carnegie’s ideas about philanthropy are still making a difference. In the Giving Pledge, contemporary billionaires, including Bill and Melinda Gates and Warren Buffett, have promised to give away at least half of their wealth during their lifetimes to benefit the greater good instead of leaving it to their heirs.
Following in Carnegie’s footsteps, the Gates family has supported internet access for libraries in low-income communities and libraries located abroad. Several billionaires, including Buffett, have publicly professed their support for the estate tax. A philosophy of giving and public responsibility may be one of Carnegie’s most enduring legacies.
Editor’s Note: The Bill and Melinda Gates Foundation is a strategic partner of The Conversation US and provides funding for The Conversation internationally as does the Carnegie Corporation of New York.
According to a CNBC article, the NFL will vote whether to require players to stand for the "National Anthem" during their next meeting.
If the NFL owners vote for the requirement, they will be on the wrong side of history. The "Star-Spangled Banner" as it was originally written contained four verses, however, only the first verse is sung as our National Anthem. The third verse, celebrated the death of slaves fighting to free themselves, see the video below.
According to VICE, “African-American males are only six percent of the United States population, but comprise nearly 70 percent of the players in the National Football League.” The NFL’s 32 teams earned around $12 billion in 2015 with merchandise sales over $1.55 billion.
If the NFL benefits immensely from the work of black men, why doesn’t it address serious issues of concern to America’s black community? Specifically, why hasn’t the NFL addressed the issue of unarmed black men being killed by law enforcement? "If you're Comfortable with My Oppression, then You are My Oppressor".
If the NFL votes to force players to stand, civil rights organizations including those that receive "bribe" funding from the NFL need to call for a boycott. I will personally boycott the NFL, just like I did when the WNBA took a stance against its players, and hope others will join me.
Colin Kaepernick and other players refusing to stand during the national anthem has elicited a greater uproar from the NFL than the existence of police brutality and the killing of unarmed black teens and men. To paraphrase MLK's "Letter from Birmingham Jail", "You deplore the demonstrations taking place by NFL Players. But your statement, I am sorry to say, fails to express a similar concern for the conditions that brought about the demonstrations."
It's bad enough that the league seems to have sanctioned Kaepernick by refusing to hire him, but forcing Black players to stand in direct opposition to their belief or self-interest is unconscionable. If you don't support athletes and entertainers when they stand up for your rights, don't expect them to continue speaking out.
A group of pastors has already called for a Blackout of the NFL, see their video below.
Let's be clear, Colin Kaepernick was standing up for others when he refused to stand; it is very unlikely, he would have personally been a victim of police brutality because of his fame and wealth. He put all that on the line to protect not only his rights but yours and mine as well.
Black people struggling with debts are far less likely than their white peers to gain lasting relief from bankruptcy, according to a ProPublica analysis. Primarily to blame is a style of bankruptcy practiced by lawyers in the South.
NOVASHA MILLER PUSHED THROUGH the revolving doors of the black glass tower on Jefferson Avenue last December and felt a rush of déjà vu. The building, conspicuous in Memphis’ modest skyline along the Mississippi River, looms over its neighbors. Then she remembered: Years ago, as a teenager, she’d accompanied her mother inside.
Now she was 32, herself the mother of a teenager , and she was entering the same door, taking the same elevator. Like her mother before her, Miller was filing for bankruptcy.
She’d cried when she made the decision, but with three boys and one uneven paycheck, every month was a narrow escape. A debt collector had recently won a court judgment against her and, along with that, the ability to seize a chunk of her pay. Soon, she would be forced to decide between groceries or electricity.
Bankruptcy, she figured, despite its stink of shame and failure, would stop all that. She could begin anew: older, wiser, and with a job at a catering company that paid $10.50 an hour, a good bump from her last one. She could keep dreaming of a life where she had money left over at the end of each month, a chance of one day owning a home.
What Miller didn’t know when she swallowed her pride and called a local bankruptcy attorney is that she would probably end up right back where she started, with the same debts, in the same crisis. For the black debtors who, for generations, have made Memphis the bankruptcy capital of the U.S., the system delivers neither forgiveness nor renewal.
Up on the sixth floor of that tower where I met Miller last February, the U.S. Bankruptcy Court for the Western District of Tennessee appeared to be a well-functioning machine. Debtors, nearly all black like her, crowded the wedge-shaped waiting area as lawyers, paralegals and court staff, almost all white, milled about in front. Hundreds of cases are filed here every week, and those who oversee and administer the process all proudly note the court’s marvelous efficiency. Millions of dollars flow smoothly to creditors, to the court, to bankruptcy attorneys.
But the machine hides a harsh reality. When ProPublica analyzed consumer bankruptcy filings nationwide, the district stood out, both for the stunning number of cases in which debtors were unable to get relief, and for the reasons why. In Memphis, an entrenched legal culture has made bankruptcy a boon for attorneys while miring clients like Miller in a cycle of futility.
Under federal bankruptcy law, people overwhelmed by debt have a choice: They can either file under Chapter 7, which wipes out debts and, since most filers lack significant assets, allows them to keep what little they have. Or they can choose Chapter 13, which usually requires five years of payments to creditors before any debts are eliminated, but blocks foreclosures and car repossessions as long as debtors can keep up. In most of the country, Chapter 7 is the overwhelming choice. Only in the South, in a band of states stretching from North Carolina to Texas, is Chapter 13 predominant.
The responsibility of knowing which path to pick falls to those seeking relief. In Memphis, about three-quarters of filings are under Chapter 13. That’s how Miller filed. She thought the two chapters were “the same,” she told me.
Initially, they are. Upon filing, debtors are shielded from garnishments and debt collectors. But whereas under Chapter 7 those protections are generally made permanent after a few months, under Chapter 13 they last only as long as payments are made. Most Chapter 13 filers in Memphis don’t last a year, let alone five.
As efficiently as cases are opened, they are closed — usually because debtors fail to keep up with payments, according to a ProPublica analysis of court data. In 2015, over 9,000 cases in the district were dismissed — more cases than were filed in 22 other states that year. Less than a third of Chapter 13 cases in the district result in a discharge of debts. And when their cases are dismissed, debtors are often in worse straits, because as they struggled to make payments, the interest on their unpaid debts continued to mount. Once the refuge of bankruptcy is gone, the debt floods back larger than ever. They’ve borne the costs of bankruptcy — attorney and filing fees, a seven-year flag on their credit reports — without receiving its primary benefit. A system that is supposed to eliminate debt instead serves to magnify it.
Driving this tremendous churn of filings is a handful of bankruptcy attorneys with what sounds like an easy pitch: immediate relief, for free. In Memphis, it typically costs around $1,000 to hire an attorney to file a Chapter 7, but most attorneys will file a Chapter 13 for no money down. Ultimately, the fees for Chapter 13 filings are higher — upwards of $3,000 — but the payments are stretched over time. For many people, this is the only option they can afford: debt relief on credit. For attorneys, they gain clients — and a regular flow of fees — they might not otherwise get, even if few of their clients get lasting relief.
Chapter 7 Filing Rates Are Higher in Black Areas, With Patterns Similar to White Areas…
Chapter 7 Filings per 1,000 Residents — Majority Black Zip Codes vs. Majority White Zip Code
…But Chapter 13 Filing Rates Are Extremely High in Black Areas, With a Larger Racial Gap
Chapter 13 Filings per 1,000 Residents — Majority Black Zip Codes vs. Majority White Zip Codes
Source: Department of Justice data, ProPublica analysis
For black filers in Memphis, relief is particularly rare. They are more likely than their white peers to file under Chapter 13 and less likely to complete a Chapter 13 plan. Because failure is so frequent in Memphis, many people file again and again. In 2015, about half of the black debtors who filed under Chapter 13 in the district had done so at least once before in the previous five years. Some had filed as many as 20 times over their lifetimes. Here, bankruptcy is often not the one-time rescue it was envisioned to be, but rather a way for the poor to hold on to basic necessities like electricity for a couple months.
“The way we have it set up, our culture, has a lot of unintended consequences,” said Judge Jennie Latta, one of five bankruptcy judges in the Western District of Tennessee. Since 1997, when she took the bench, the racial disparities in Memphis have been evident, she said. “It was troubling to me then, and it’s still troubling to me.”
When I asked judges, trustees, who administer the cases, and debtor attorneys what could be done to reduce racial disparities and improve outcomes, I was mostly met with resignation. I heard a lot about the poverty in Memphis and a legal culture with deeply rooted traditions. But ProPublica’s analysis identified bankruptcy attorneys in Memphis who had much more success in getting their black clients out of debt. These attorneys had a different approach, preferring Chapter 7 to Chapter 13, and, crucially, allowing more flexibility in what clients paid upfront in fees.
Scrutiny of Memphis is important, because the racial differences we found there are present across the country. Nationally, the odds of black debtors choosing Chapter 13 instead of Chapter 7 were more than twice as high as for white debtors with a similar financial profile. And once they chose Chapter 13, we found, the odds of their cases ending in dismissal — with no relief from their debts — were about 50 percent higher.
Meanwhile, the $0-down style of bankruptcy practiced in Memphis, long common across the South, is quietly growing in popularity elsewhere. Chicago in particular has seen an explosion of Chapter 13 filings in recent years. A recent study found that the “no money down” model is becoming more prevalent, prompting concerns that it is snaring increasing numbers of unsuspecting debtors and ultimately keeping them in debt.
ABOUT 10 MILES south of the black glass tower lies the community of Whitehaven. Famous as the site of Graceland, Elvis Presley’s mansion, its streets are lined with miles of humbler homes, mostly one- or two-bedroom bungalows. The houses reflect the range of financial security among Whitehaven’s almost exclusively black residents: Some lawns are immaculately kept in front of neat, pretty facades, while others run riot with weeds next to broken-down cars.
This is where Novasha Miller was born and raised. She went to Hillcrest High on Graceland Drive and still lives in the area. Here, bankruptcy has a startling ubiquity. Count the bankruptcies filed from 2011 through 2015 by residents of Whitehaven, and there is almost one for every three households.
Miller’s spiral downward began in late 2014, when she and her sons moved into a $545-per-month apartment in Highland Meadows, a complex pitched on its website as nestled in a “serene woodland setting.” Inside, roads wander around shaded clusters of two-story structures, some with boarded-up doors and windows.
Miller soon realized she’d made a mistake by signing the lease. Roaches emerged every time she cooked, she said. Underneath the kitchen sink, mold was spreading that seemed to aggravate her 10-year-old son’s asthma. The stove broke; then bedbugs arrived, leaving telltale marks up and down her and her boys’ arms.
Despite her calls and complaints, she said, management didn’t fix the mold issue and told her she’d have to pay for an exterminator herself. Finally, she decided to move. She wrote a letter saying she was breaking her lease and explaining why.
“My kids’ health is more important than anything, and I just had to leave,” she told me. (The company that manages Highland Meadows did not respond to requests for comment.)
A couple of months after she moved, Absolute Recovery Services, a collection agency, sent her a letter saying she owed $5,531 — a total that seemed inflated to Miller. If she didn’t pay up immediately, the agency wrote, it might sue. It followed through the next month, tacking on a $1,844 attorney fee, for a total bill of $7,375.
Derek Whitlock, the attorney who represented Absolute Recovery Services in its suit against Miller, provided ProPublica with an accounting of Miller’s debt. Only $1,635 was due to back rent; the rest stemmed from eight different types of fees — all of which, Whitlock said, Miller had “contractually agreed to.” Miller’s lease had also stated that residents were “responsible for keeping the premises free from infestation of pest, etc.,” he said.
With no attorney to represent her, Miller went to court. Delayed by a search for parking, she missed her case, and Absolute Recovery won a judgment against her. A court employee told her the agency could soon move to garnish her paycheck, she said.
Under Tennessee law, debt collectors can seize up to a quarter of debtors’ take-home pay, and in Shelby County, which contains Memphis, they sought to do so in over 21,000 cases in 2015, according to a ProPublica analysis of court records. Such garnishments are far more common in black neighborhoods.
“I cried, stressing at work,” said Miller. “I couldn’t work, trying to figure out what to do.”
At the time, Miller earned $9 an hour working for a catering company where her hours were often cut without warning. Although she’d never had an extended stretch of unemployment, the last several years had been a struggle. She still carried $19,000 in student loans from a cosmetology program, and a $1,100 loan from a car title lender, TitleMax, which she’d used to cover one month’s shortfall. TitleMax routinely lends at annual interest rates above 150 percent in Tennessee, and every month Miller had to come up with about $100 in interest to keep the company from seizing her 2003 Pontiac Grand Prix. If Absolute Recovery garnished her wages, Miller stood to lose her apartment, her electricity or the car she drove to work.
The pressure, she said, pushed her into bankruptcy court. “It’s hard out here,” she said. “I hate that I had to go through it just to keep people from garnishing my check.”
She Googled “bankruptcy attorney” and landed on the website of Arthur Ray, who has been practicing in Memphis since the 1970s. His website was topped with “$0” in large type. “Most of our Chapter 13 bankruptcies are filed for $0 attorney’s fee up front.” She called and made an appointment.
EARLIER THIS YEAR, I headed to Memphis to meet people like Miller and find out why attorneys there kept funneling their black clients into Chapter 13 plans when so few could complete them. I came armed with what amounted to a score sheet for each attorney, showing how their black and white clients had fared. ProPublica had taken every case filed in the district over 15 years, paired it with census information and put it on a map. In a starkly segregated city like Memphis, we could deduce the race of their clients with confidence based on where they lived.
I caught up with Ray by phone. Like most of the higher volume lawyers in the district, Ray is white while most of his clients are black. About nine out of every 10 of his cases is a Chapter 13. And he was twice as likely to file under Chapter 7 for a white client as he was for a black client.
None of this troubles Ray in the least. If Chapter 13 has an evangelist, it’s Ray, who trumpets its attributes unapologetically. In his eyes, debtors need Chapter 13 to train them to get their financial houses in order and instill discipline on their unruly spending.
“A Chapter 13 shows people how to live without buying things for that 60-month plan,” he said. “With a Chapter 7, wham bam it’s over, and they’re back to the same old thing, the bad habits that got them in trouble to begin with.”
When debtors squander Chapter 7’s power to erase debt, he argued, they are stuck — barred from filing again for eight years. Better to keep that option in reserve for something truly catastrophic, he said.
Ray conceded that most of his clients do not successfully complete their Chapter 13 plans, but he argued that wasn’t so bad. “It may be a long time before the creditors come after them,” he said. And when the phone calls and the legal notices do come back, “then they can file again.”
In Western Tennessee, More Bankruptcy Filings, But Less Debt Relief for Black Debtors
Filings by Disposition, 2008-2010, All Chapters, Majority Black Census Tracts vs. Majority White Census Tracts
Source: Department of Justice data, ProPublica analysis. Even though residents of the mostly black areas in the Western District of Tennessee file for bankruptcy in much higher numbers than residents of white areas, they are less likely to actually see any debt discharged, or wiped out. With Chapter 7 and Chapter 13 filings combined, there were almost 8,000 more filings by debtors from mostly black census tracts from 2008-2010, but debtors from mostly white tracts received almost 3,000 more discharges.
I told Ray that Novasha Miller hadn’t understood the difference between the two chapters. Ray was not troubled by this either. As required by law, he said, he provides clients with documents explaining the difference, but any client who asks about Chapter 7 will get an argument from him. “They need to learn how to live not buying things on credit,” he said.
Few attorneys are likely to express this paternalistic view as bluntly as Ray, but the idea that bankruptcy courts should rehabilitate debtors instead of simply freeing them of their debts dates back to the 1930s, when, buoyed by creditors’ lobbying efforts, Chapter 13 first became law. It’s a form of bankruptcy that sprang from the South: Started as an experiment by the bankruptcy court in Birmingham, Alabama, it was added to the federal bankruptcy code through a bill authored by a Memphis congressman. To this day, many see Chapter 13 as the more honorable form of bankruptcy because it includes some attempt to repay debts.
But when I asked some of Ray’s colleagues why so many of their clients filed under Chapter 13, honor was rarely mentioned. Instead, they said it was about holding on.
“Chapter 13 is generally a ‘keep your stuff’ chapter,” is how Bert Benham, a Memphis bankruptcy attorney, put it.
Most people who end up filing in the district don’t own much. In 2015, 69 percent of those who filed under Chapter 13 didn’t own a home, and the median, or typical, income was less than $23,000 per year.
For many people, the most important thing is keeping their car, a necessity in Memphis, which has little public transportation. Used car lots abound, offering subprime credit. When borrowers fall behind and lenders threaten repossession, Chapter 7 won’t stop that from happening. But Chapter 13 allows secured debts to be repaid over the course of the plan. In theory, loan payments on a car or mortgage can be reduced to an affordable level, providing time to catch up without fear of repossession or foreclosure.
Lured by this promise, desperate Chapter 13 filers can spend years caught in a loop. One Whitehaven resident told me how, in order to hold on to her car, she’d filed under Chapter 13 four times since 2011. The first time, she lost her job a year and a half after filing, and her case was dismissed after she fell behind. She immediately filed again to keep the car for job interviews, using unemployment benefits to make the payments until she couldn’t. She then filed a third time. Finally in 2014, after her third dismissal, she got a new part-time job paying $11 an hour and filed again.
She still has two years of payments to go and will have spent most of her 30’s trying to hold on to her car. “If I’d known,” she said, “I just would have let my car go.”
Bernise Fulwiley, 60, filed for Chapter 13 in 2014 to avoid foreclosure on her home, a brick bungalow with a large maple in the yard on a corner in Whitehaven. The following year, she lost her warehouse job when she required foot surgery and couldn’t keep up her payments. She got another warehouse job, earning $9.50 an hour, and filed again. She has kept up the payments for two years, and is determined to make it for three more.
“‘God, go before me. Open this door! Help me, Lord!’ That’s been my prayer,” she said. “I ain’t gonna never give up.”
For decades, the most prolific bankruptcy firm in Memphis has been Jimmy McElroy’s, known for its long-running TV commercials featuring the now-deceased Ruby Wilson, a legendary blues and gospel singer dubbed the Queen of Beale Street. At the end of 30-second spots, she exclaimed, “Miss Ruby sings the blues, and you don’t have to!”
McElroy, a mild-mannered white man in his 70s with a genteel lilt to his speech, told me that “the ultimate success” for a Chapter 13 filing is “to pay it out, get a discharge, get out of debt. And then learn to live within your means.” From 2011 through 2015, McElroy’s firm filed over 8,000 Chapter 13 cases and fewer than 900 Chapter 7 cases. About 80 percent of his clients come from predominantly black neighborhoods.
But “ultimate success” is rare at his firm. Only about one in five of the Chapter 13 cases filed by his black clients reached discharge, a rate typical for the district. When I asked why, McElroy, whose office is in the same tower as the bankruptcy court, said clients generally “get the temporary relief they needed,” but then things just happen: “They lose their job. They get sick. They get a divorce.”
Sometimes Chapter 7 does seem like a better choice, he said, but the client can’t afford to pay the attorney fee, which, at his firm, is about $1,000. In those cases, he’ll advise them to start with a Chapter 13, since it’s “more affordable to get into,” he said. “I tell them … ‘If you get in a better situation, we can convert later.’”
Debtors are, indeed, allowed to switch from Chapter 13 to Chapter 7 after their cases have begun, although it typically requires paying an additional attorney fee. But this rarely happens in the district. Only about 5 percent of Chapter 13 filings since 2008 converted to Chapter 7, according to our analysis. For McElroy’s firm’s cases, it was 2 percent.
OFTEN IN MEMPHIS, the whole goal of bankruptcy is just to address basic needs, even if only for a month or two.
Last year, Memphis Light, Gas and Water cut off customers’ electricity for nonpayment 98,000 times. It’s an “astoundingly high” number given that Memphis provides electricity to fewer than 400,000 customers and “far higher than any other large urban utility that I’ve seen,” said John Howat, senior energy analyst with the National Consumer Law Center.
Nearly half the Chapter 13 cases filed by black residents in the district had utility debt, our analysis of 2010 filings found. The typical debt with the utility company was $1,100. For customers with poor credit, the utility has a policy of disconnecting service within a couple months if the arrears grow beyond $200.
MLGW does offer programs for low-income customers and installment plans for those who fall behind. “We have probably some of the most liberal customer assistance programs of any utility in the country,” said Gale Carson, spokeswoman for MLGW.
But that assistance is limited to just a few thousand households. And the installment plans require customers to make the payments in addition to their normal monthly bills.
By declaring bankruptcy, debtors can start a monthly Chapter 13 plan tied to their income and get the power turned back on within a month or so.
In February, I visited Michael Baloga, an attorney at Long, Umsted, Jones & Kriger, at the firm’s downtown storefront, just down the street from the Shelby County Jail and next door to a bail bond agent.
“Chapter 13 bankruptcy can be a necessary evil at times,” he told me. “Like, for today, there are people who are coming in because it’s cold, and they don’t have electricity.”
Baloga said he didn’t like to file cases just for that reason. “But on the other hand, am I going to let them sit and freeze in their home because they don’t have it? … I know that they’re going to file the bankruptcy and that they’re not going to stay in it very long. In the alternative, am I just going to turn them away and say, ‘No, you’re not going to get a chance at all?’”
For the firm’s predominantly poor and black clientele, the chances are remarkably low: Only one in 10 of the cases result in a discharge. Most don’t last six months.
Using bankruptcy this way “seems like using a sledgehammer to hang a picture,” said Judge Latta. But she understands why debtors do it. “I think bankruptcy, in Memphis anyway, is very much part of the social safety net,” she said, “and all these problems fall down into it.”
About 18,000 times each year, Tennessee suspends the driver’s license of a Shelby County resident for failing to pay a traffic fine, according to state data obtained by Just City, a Memphis nonprofit advocacy organization. About 84 percent are black drivers, although only half of Shelby County’s residents are black.
In 2010, about a quarter of black residents filing Chapter 13 had outstanding debt with the Shelby County General Sessions Criminal Court, which handles mostly misdemeanors and traffic offenses, our data shows. Their typical debt was around $1,600.
Court officials said licenses are only suspended if defendants fail to pay fines within 12 months. The court offers installment plans, including one called the Driver’s Assistance Program that allows drivers to regain their licenses. But only about 230 people were enrolled in the program as of March, they said.
For those who can’t afford or don’t qualify for the court’s programs, Chapter 13 provides an answer. They can get their licenses reactivated within a matter of months and stretch payments over five years, if they make it that long. Such fines can’t be eliminated through Chapter 7.
In Chicago, similar pressures have led to a recent boom in Chapter 13 filings. Chapter 13 filings by black residents in the Northern District of Illinois rose 88 percent from 2011 to 2015, we found. There, the issue is mostly parking tickets, according to ProPublica’s analysis and a recent academic study of filings in Cook County. But, like Memphis, it’s overwhelmingly black debtors who file for Chapter 13 to forestall license suspensions or car seizures.
In Memphis, that means the debtors who use the bankruptcy system the most — low-income black debtors — fare the worst.
“I say all the time that in Memphis, debtors don’t earn a living wage,” said Sylvia Brown, one of the two trustees for Chapter 13 cases in Memphis.
A FEW FLOORS ABOVE THE BANKRUPTCY COURT are the offices of Cohen & Fila, a firm with a mostly poor clientele and one of the highest volume practices in the district. I asked Tom Fila, a Yankee transplant who has practiced bankruptcy law in Memphis for more than 20 years, about one of his clients: The firm had filed 17 cases on her behalf, all but two under Chapter 13. She was one of at least 465 people who had filed for bankruptcy 10 or more times in the district between 2001 and 2015, ProPublica’s analysis found. These repeat filers tend to be among the poorest.
Fila bristled at the implication that his firm had filed the cases for any reason but the best interest of the client. “I’m not making money on these cases, and I probably shouldn’t file them,” he told me. “I often tell my clients that repeated filings aren’t doing them any good. They are ending up in the same spot they started in, only now they have multiple bankruptcy cases on their credit report … but at the end of the day I’m not the one living without utilities or being evicted or being without transportation.”
Of course, most of the time attorneys in the district do get paid something. When we analyzed the Chapter 13 cases filed in 2010, we found that, on average, attorneys in the district collected $1,340 per case out of their full $3,000 fee. Some firms, like Fila’s, collected much less (about $700), and some collected more.
But what has made bankruptcy a viable business for the biggest firms in Memphis for so long is the sheer volume. From the 12,000-plus Chapter 13 cases they filed in 2010, we estimate that attorneys reaped at least $16 million in attorney fees over the next five years. McElroy’s firm, the largest, collected at least $2 million.
Things have worked this way in the district for as long as anyone can remember. The district’s chief judge, David Kennedy, who has presided over cases since 1980, said attorneys have been charging $0 down to file Chapter 13s at least since the 1970s.
He sees no clear need for reform. Chapter 13 “provides, I think, better relief, depending on the circumstances,” he said, adding that the large number of dismissals is not necessarily bad. “Just because it doesn’t go to discharge doesn’t mean it’s a failed case.” A homeowner might file Chapter 13 to stop a foreclosure, he said, then use the breathing room to work out a loan modification with the mortgage servicer and drop the case voluntarily.
That undoubtedly does happen. But most debtors in the district don’t own a home.
Judge Latta said efforts to help the poor file under Chapter 7 for free have met with resistance. “We get a lot of pushback on pro bono programs here,” she said. “[Attorneys] say, ‘But, judge, we can put them in a Chapter 13, and we can get paid for that.’”
It’s no secret in Memphis that bankruptcy works differently outside the South, but the scope of that contrast is staggering. In 2015, for example, there were 9,000 Chapter 13 cases filed in Shelby County, while in Brooklyn, New York, there were fewer than 300. Brooklyn has a similar poverty rate, median income and higher housing costs. Like Shelby County, it has a large black population. It also has 1.6 million more people.
What’s the biggest difference? How bankruptcy attorneys are paid. In Brooklyn, attorneys usually ask for around $2,000 upfront to file a Chapter 13, said Michael Macco, a trustee in the Eastern District of New York. As a result, poorer households simply can’t afford to file. The typical Chapter 13 debtor who hired an attorney in Brooklyn in 2015 was a middle-income homeowner with $420,000 in assets — over 40 times more in assets than filers in Shelby County.
The reasons for vast differences like these among courts are largely arbitrary. While bankruptcy is a federal institution, ruled by laws made in Washington, D.C., each local court is essentially its own kingdom with its own customs shaped by the judges, trustees and attorneys who work there. Scrutiny of these differences, and how they affect debtors, has been scant.
While judges like Kennedy are untroubled by the flood of unsuccessful Chapter 13s, our analysis found Memphis attorneys who have built successful bankruptcy practices in a different way. In an office park on the eastern edge of the city, I met Jerome Payne, who has filed more Chapter 7s on behalf of black clients than anyone in the district in recent years, despite not being in the top 10 firms in terms of total volume.
That alone would make Payne stand out. But Payne is also, unlike all but a few debtor attorneys in Memphis, black.
A cop turned nurse turned attorney, Payne, 66, has been practicing bankruptcy law in Memphis since the 1990s. Inside his office, the thick carpeting and friendly banter between Payne and his two long-standing employees give the place a homey feel, albeit a home with files stacked everywhere and large binders labeled “GARNISHMENTS” spilling out of a cabinet.
African-American identity is a major part of his practice. When his firm sends out letters to prospective clients — usually people who have been sued over a debt – he tries to make sure they know. “I use black heritage stamps,” he said. Sometimes he uses Kwanzaa stamps. He includes a page with inspirational sayings, like one with a quote from Marcus Garvey, a leader of the Black Nationalist movement, who is depicted with his body in the shape of Africa.
The emphasis on blackness is not just a marketing gimmick, he said. Because the clients are “people who look like me,” he said, “they feel more comfortable with me.”
And that, he said, may help in convincing debtors that Chapter 7 is a better choice. Payne’s challenge, he said, is getting them “to take the emotions out of a home, the apartment, out of the vehicle” and decide that they are better off without the debt.
This discussion is what he calls his “come-to-Jesus meeting.” Contrary to Arthur Ray’s emphasis on teaching his clients financial discipline through five years of payments, Payne promotes the discipline of letting go of possessions they can’t afford.
“Me being African American, and me understanding my community, maybe I’ve been more successful in showing them that this is not the way you ought to go,” he said.
Crucially, Payne also approaches fees differently. Whether it’s a Chapter 7 or Chapter 13, the down payment is usually a couple hundred dollars, and his clients can pay the remainder in installments.
He doesn’t file Chapter 13 cases for no money down, because he just doesn’t like the idea. And he has an employee, instead of him, discuss fee arrangements with clients, he said, because “I found that it colors the way that I do business.”
Brad George is another attorney in the district who often files Chapter 7 cases for his clients. His approach is simple. “It’s not rocket science, I can tell you that,” said George, who is white and has practiced bankruptcy in Memphis for 20 years. If there is a good reason to do a Chapter 13, like a threatened foreclosure or driver’s license issue, then he will file that way. Otherwise, he said, “I think you should try and always, always, always do a [Chapter 7].”
To file a Chapter 7 with George, it costs the debtor $555, with most of that due upfront. That is about half of what many other attorneys charge in Memphis. But, to George, it just seems like enough.
“I figure I spend about two hours on average per Chapter 7 [case],” he said. “So that’s pretty fair, I’d say.”
George also doesn’t file Chapter 13 cases for no money down, instead asking for around $200 dollars, giving his clients a much more balanced choice between how much money they have to come up with to file Chapter 7 versus Chapter 13.
George’s black clients file under Chapter 7 almost half the time, according to our analysis, a rate that is almost two and a half times what is typical in the district. There is also little racial disparity in what portion of his black and white clients end up in Chapter 7.
Payne and George agree that their flexibility with fees is likely a key reason they are able to file more Chapter 7 cases for black clients.
There are understandable reasons why attorneys tend to be less flexible with Chapter 7 fees. When debtors receive a discharge of their debts at the end of the case, outstanding fees to their attorneys are also wiped out. Any further payments are voluntary. As a result, debtor attorneys — in Memphis or anywhere else — generally require the entirety of their fee upfront. To address this problem, some scholars have called for Congress to change the law to make attorney fees clearly exempt from discharge.
Such a change could have a large effect. The firm that files the most bankruptcy cases in Atlanta, for example, files Chapter 7 cases for $0 down, with the entirety of the fee due through an installment plan that lasts several months. The chief judge in the Northern District of Georgia has ruled that such arrangements are legal, and other large firms in the Atlanta area have adopted the practice.
The result is clear. In the heart of the South, most of the filings in the Northern District of Georgia are under Chapter 7 — compared to less than 30 percent in the rest of the state. And notably, black debtors in that district file under Chapter 7 almost half the time, a rate significantly higher than even the white debtors in the Western District of Tennessee.
FOR NOW, things in Memphis continue as they seemingly always have. In April, less than six months after it began, Novasha Miller’s Chapter 13 case was dismissed. Though she hasn’t heard anything yet, her old landlord’s collection agency is again free to attempt garnishment of her wages.
Miller said that a miscommunication with her attorney led to the dismissal. After she changed jobs again (the new one pays a little bit less, $9.36 an hour, but it’s full-time and she likes the people), she notified Ray’s office, she said, but the plan payments were never set up to be automatically withdrawn from her paychecks. However it happened, having paid about $600, all of which was absorbed by court and attorney fees, she was back to square one. Choosing Chapter 7 could have resulted in her emerging from bankruptcy with her student loan as her only remaining debt. Instead, her debts, having gone unpaid for months, were now larger — she’s not clear yet just how much — the interest applied as if the bankruptcy had never happened.
She is thinking of filing again, maybe with a different attorney. And hopefully, she said, this time it’ll work out.
Republished with permission under license from ProPublica.
In the wake of the police acquitals in shooting deaths of unarmed black men and women and the NFL players refusing to stand during the National Anthem, Nick Canon delivered a power spoken word piece, "Stand For What".
Complete text of the spoken word piece, "Stand For What".
"Stand For what?!
You want me to stand for a song that continues to remind me of all the harms that have done me wrong?
Stand for what?!
For your Army that none of our sons truly belong
Stand for what?
The 100 years it took them to convince Congress to become the anthem after 40 failed attempts
Stand for what?
Your forefathers who really just Pimps.
Stand for What?
A song about War, not freedom That's how you want to lead them Brainwash your people? that's how you want to treat em Slavemasters whips to Cops night sticks, that's how you continue to beat em.
Stand for what
the beginning of Slavery in 1619 Or the end of those Black Marines of 1814 That's really what the lyrics are about They may have taken the word slave out but they forget to remove the slave connotations from their brains and they mouth The mentality to make America Greater than your imagination is how you pout Hating because we burned down their White House Gave proof through the night, that its light out For the old elitist white man thinking Drunk off they ass with power at baseball games singing and drinking
Man stand for what?
Stand for something or fall for dumb shit!
Stand for what
To salute the Red White and Blue, on a Flag where my Colors not reflected
Stand for what
To uphold laws that were embedded to have my community negatively affected
Stand for what
Your racist systemic melodies of mind manipulating rhetoric? Did you know the government pays Sports organizations for plays, to make people more patriotic This MK Ultra Soul control needs to stop it I can still love my country and hate that fucked up song about rockets, and bombs bursting air Reminds me of Charlottesville's vicious glares And police shootings with no care like the dash cameras wasn't there.
Stand for what
Monuments and statues of old slave masters Constant reminders of our nations disasters The Heros in Houston, the Doctors, the Poets and the Pastors. That's who I want to shape our greatness after I honor and respect our men and women of service But we've been taught to idolize wars without purpose The majority of our Militaries casualties are minority soldiers So let's make statues of those warriors because they truly deserve it Mt Rushmore was built by the Ku Klux Klan, so why the fuck should I have respect for those men Damn, This is not my country and it's not yours either. Go back to Africa? I wish we never had to leave it But the entire World is our neighborhood So why do we perceive certain blocks to be bad and other blocks to be good? Instead of glorifying the past we gotta focus on the future Dick Gregory warned me if U speak up They probably gonna shoot ya! But I shout for his eternal voice along with Martin, Malcolm and Marcus Garvey and march wholeheartedly for their legacy Because I'll say it loud as you can see Fuck Francis Scott Key and Robert E. Lee They don't represent me and neither do either of these hypocritical political parties I am a native to the cosmic and Universal God Energy. Even though the constitution really doesn't apply to me I'll try to exercise my freedom of speech So you can tell them you heard it from me. Yeah I said it Brutality, Historic Fallacies and All war is wrong and so is that fucking song! It's Been way too long! It's time to make a change and acknowledge that your home of the brave was built on the back of a Slave. So bowing down to a true King Is the only way to let freedom ring
New evidence pointed to innocence in the cases of these four Baltimore men, yet prosecutors would only let them go if they agreed to controversial plea deals.
by Megan Rose
Despite new evidence undermining the convictions of at least eight men for violent crimes in both Baltimore City and County over the last two decades, none were exonerated. Instead, they left prison only after agreeing to plea deals with state prosecutors. In each case, the men took either Alford pleas, in which defendants can maintain their innocence for the record, or were given time-served arrangements. With these deals, the defendants were granted their freedom, but gave up the right to clear their names. (Two additional men took similar deals but years later were fully exonerated after more exculpatory evidence was found in the police files.)
ProPublica’s examination of these cases reveals a troubling pattern — one that legal experts say plays out across the country. Persuasive innocence claims were met with refusals by the state’s attorney’s office to reexamine the cases, sometimes despite — or perhaps because of — discoveries of official misconduct. Prosecutors often fought for years to prevent the consideration of any new evidence or the testing of old evidence for DNA. Or they accommodated contrary new facts by stretching their theories of crimes. If the DNA in a rape case, for example, didn’t match the defendant, prosecutors would assert that another unknown assailant was involved, too. When judges ordered new trials or granted writs of innocence, prosecutors started bargaining for plea deals that would maintain the convictions.
Over time, prosecutors have defended their decision to seek deals, claiming in each case that they still believed in the defendants’ guilt. They also argued that given the amount of time passed, the cases would be difficult to retry.
But Michele Nethercott, the head of the Innocence Project Clinic at the University of Baltimore School of Law, said with these cases, “often, the truth doesn’t seem to matter much.”
Type of Deal: Alford plea
The Original Case
The white victim identified him 10 weeks after the crime. The victim’s ID of Seward, an 18-year-old black man who had a moustache and goatee at the time of the murder, conflicted with her contemporaneous description after the attack of a clean-shaven assailant. Neither the fingerprints nor biological evidence from the crime matched Seward.
New Evidence Later Discovered
Seward’s employment records as a part-time dog washer, which were discovered 12 years after the trial, showed he’d been at work the day of the shooting. His boss also testified she kept the shop locked and it would have been “impossible” for him to have left.
Fought for the next 19 years, arguing, in turn, that the records weren’t admissible as new evidence and shouldn’t be given any consideration; that they didn’t provide an alibi because no hours were specified; and that they bolstered the case against Seward because the shop was near the victim’s house. One of the prosecutors on the case, John Cox, also told ProPublica that the records’ discovery so long after the trial meant they couldn’t be trusted.
Baltimore County State’s Attorney Scott Shellenberger said recently that because the victim saw her attacker up close, he wasn’t concerned that the case rested on a cross-racial identification. (That type of ID has been shown to be less reliable because people are generally bad at distinguishing facial features of people who aren’t their own race. Of the 351 people exonerated by DNA evidence since 1989, the national Innocence Project found that 41 percent had been convicted on mistaken cross-racial identification.)
How the Deal Happened
Judge said the employment records “thoroughly exculpate[d]” Seward and granted a writ of innocence. The state appealed and eventually lost. “The state’s immediate reaction was to offer a plea,” said Shawn Armbrust, of the Mid-Atlantic Innocence Project and one of Seward’s lawyers.
Shellenberger said that he’d been confident about the case and wanted to go to trial, but the victim didn’t want to testify again. “Keeping something on the record was extremely important to us.”
Why Defendant Agreed to Deal
Seward first turned prosecutors down, but then, as he awaited a new trial, a close friend was stabbed in prison. Seward had nine months before the trial began, so he reconsidered.
Type of Deal: Time served
The Original Case
Based solely on Barnes’ confession made after 31 hours in custody. A largely illiterate 17-year-old with a low IQ and no prior record, Barnes’ police-typed statement conflicted with the evidence in the case in major ways, such as how and where the 15-year-old female victim was killed. And he had an alibi for the time of the murder. (Barnes’ confession also incriminated two others, but no one else was charged.)
New Evidence Later Discovered
In 2009, 37 years after Barnes’ conviction, DNA evidence collected from the victim’s body was tested and excluded him from any sexual assault, further undermining his confession, which had described a violent gang rape that included Barnes and another man ejaculating. The DNA, which only came from one male, also excluded one of the other teenagers implicated in Barnes’ statement.
Prosecutor Sharon Holback said at the time that the state “vehemently and firmly believes that [Barnes] was fairly and properly convicted.” She argued that his confession was sound and that the third person implicated in it must have been the source for the DNA. That man couldn’t be found for comparison testing. (Holback was also the prosecutor who handled the post-conviction hearings in the case of James Thompson, whose rape and murder conviction was undermined by DNA testing, but was offered an Alford plea.)
How the Deal Happened
Judge Yvette Bryant went many months without issuing a ruling on the case, so Barnes’ lawyer took the innocence claims directly to Gregg Bernstein, who recently had been elected as Baltimore City state’s attorney on a reform agenda and had started a conviction integrity unit. The fighting over Barnes’ post-conviction motions had happened under Bernstein’s predecessor, so he had not publicly committed to any position. He was also free of one common concern prosecutors face when dealing with potentially wrong convictions: angry relatives of the victim who don’t want the case to unravel. With Barnes, the victim’s family so believed in his innocence that they had hired a lawyer to defend him.
Bernstein, who said recently that he didn’t recall the case, would concede only that Barnes didn’t deserve to be in prison anymore, seizing on a mistake in sentencing. The judge who had sentenced Barnes had thought wrongly that his only option was life.
Why Defendant Agreed to Deal
Barnes was 57 years old, had been in prison for more than 40 years and was in failing health. “I had to say to him ‘I’m confident in the end we will vindicate you, but it might be 1, 2 years or even 4 to 5 years, and there’s no guarantee,’” said Barnes’ pro bono lawyer, Michael Imbroscio, noting it was “the most difficult conversation I’ve ever had in my 22-year legal career.”
Type of Deal: Time served
The Original Case
A neighbor testified that she saw Griffin before and after the murder with a gun, and a second neighbor, who was 150 feet away, said she heard Griffin make threatening remarks the night of the murder. A set of keys found about 90 feet from the crime scene was connected to Griffin, who lived in the neighborhood.
New Evidence Later Discovered
In 2011, significant evidence was found in the police’s files that had never been given to the defense: three photo lineups in which eyewitnesses failed to identify Griffin and eight witness statements that either incriminated another suspect or contradicted the testimony used to prosecute Griffin.
One eyewitness pointed to Griffin’s picture in the lineup and said that he looked like the suspect, “but it’s not him.” Griffin’s picture was nine years old, so detectives went back to that witness and showed her another array with a current picture. She still did not identify him. Nonetheless, detectives used her description of the suspect to get a search warrant for Griffin’s home — never mentioning that she’d twice failed to pick him out of a photo array. The warrant also cited a neighbor who saw a man with a gun, but left out that he said the man wasn’t Griffin.
“There was pretty powerful evidence of innocence that was buried by the state,” Steve Mercer, Griffin’s attorney, said.
Baltimore City prosecutor Michael Leedy denied that the evidence represented a Constitutional violation. (In 1963, the U.S. Supreme Court declared that the state must turn over all favorable information to the defense in order for a trial to be fair, which has come to be known as the “Brady” requirement.) Leedy wouldn’t agree to a new trial.
How the Deal Happened
When a judge, who called the evidence “earth shattering,” indicated she’d be ordering a new trial, Leedy shifted, saying that although he didn’t believe “there were, in fact, any Brady violations” the allegations were “plausible enough” that he’d “concede to a resentencing on this matter.” This was the “best course,” Leedy said, to “ensure that Mr. Griffin will for the rest of his life remain convicted for the murder of James Wise.”
Leedy also wanted it on record that by accepting the deal Griffin gave up the right to an actual innocence ruling.
Why Defendant Agreed to Deal
Griffin was 61, knew his best years were gone and he might “die in here.” Having spent nearly 31 years in prison, he didn’t have it in him, he said recently, to wait another year-and-a-half for a new trial. But he is now trying to withdraw his deal, so he can clear his name and sue over the Brady violations. Marilyn Mosby, the current state’s attorney who ran in part on a platform of police accountability, is fighting his motion. (Her spokeswoman didn’t respond to multiple requests for comment.) A hearing is set for November.
Type of Deal: Alford plea (exonerated in 2000)
Pettiford, 23 and with a record, was identified as one of two shooters by two eyewitnesses and was tied to the murder weapon by a suspect in a related crime. But at trial, the witnesses said they’d been mistaken and the suspect said he’d lied about the weapon. Late in the trial, prosecutors produced a new witness who identified Pettiford. Pettiford had an alibi and no motive.
According to The Baltimore Sun, before the judge sentenced Pettiford to life plus 20 years, he said: “I don't care if every witness that appeared in the trial — including the detectives — come back here and say it was all a farce and it was all false and it was all wrong. I think justice was done.”
New Evidence Later Discovered
A year later, a separate federal drug investigation led to a different suspect in the murder, who pleaded guilty in federal court and told investigators that Pettiford had nothing to do with the crime.
There was also evidence that had never been given to the defense: a three-page statement from a friend of the victim that said he was the intended target and pointed to the same suspect prosecuted by the feds; a police bulletin that named that same suspect in connection to the murder; a statement from an eyewitness who identified the second shooter as someone the federal prosecutors thought was involved; and a police report naming that second person as a suspect.
Baltimore City prosecutor Nancy Pollack, who had handled the trial, didn’t act on the information federal prosecutors gave her suggesting Pettiford was innocent. Michelle Martz, Pettiford’s lawyer, said she went repeatedly “to beg and plead for [prosecutors at the time] to do something. I was floored the state wouldn’t be more concerned that they might have the wrong guy.”
How the Deal Happened
At the end of a post-conviction hearing, at which a detective revealed the existence of the three-page statement implicating someone else, the judge ordered Pollack to turn over everything in her files. Pollack agreed to a new trial and offered the plea.
Why Defendant Agreed to Deal
Pettiford, scared of what the prosecutors might do during a second round, had only one question: “Do I have to go back to prison if I take it?” He accepted the Alford plea, walked down the courthouse steps and into his family’s waiting car.
How He Was Later Exonerated
A year after the Alford plea, The Baltimore Sun newspaper exposed that the state had suppressed even more evidence and that a detective had misled the defense. In response, the judge vacated the Alford plea, saying it had been “a miscarriage of justice,” and the state declined to prosecute again. Pollack, who declined to comment, had already resigned, but the Baltimore Police Department found that the detective did nothing wrong. That detective was also named in a lawsuit filed by Sabein Burgess, who was wrongfully convicted in 1995 and exonerated in 2014.
A case in Baltimore — in which two men were convicted of the same murder and cleared by DNA 20 years later — shows how far prosecutors will go to preserve a conviction.
by Megan Rose
On Oct. 15, 2008, James Owens shuffled, head high despite his shackles, into a Baltimore courtroom, eager for his new trial to begin. Two decades into a life sentence, he would finally have his chance to prove what he’d been saying all along: The state had the wrong man.
Owens had been convicted of murdering a 24-year-old college student, who was found raped and stabbed in her home. Then he’d been shunted off to state prison until DNA testing — the scientific marvel that he’d watched for years free other men — finally caught up with his case in 2006. The semen that had been found inside the victim wasn’t his. A Maryland court tossed his conviction and granted Owens a rare do-over trial.
State prosecutors balked, insisting they still had enough evidence to keep Owens locked away and vowed to retry him. But they had also offered him an unusual deal. He could guarantee his immediate release from prison with no retrial and no danger of a new conviction — if he’d agree to plead guilty. The deal, known as an Alford plea, came with what seemed like an additional carrot: Despite pleading guilty, the Alford plea would allow Owens to say on the record that he was innocent. The Alford plea was an enticing chance for Owens, by then 43, to move on as a free man. But he’d give up a chance at exoneration. To the world, and legally, he’d still be a killer.
Owens refused the deal. He told his lawyer he wanted to clear his name, and he was willing to take his chances in court and wait in prison however long it took for a new trial to begin. It was a startling choice for an incarcerated defendant — even those with persuasive stories of innocence typically don’t trust the system enough to roll the dice again with 12 jurors or an appellate court. Most defendants, lawyers say, instinctively and rationally, grab any deal they can to win their freedom back.
The decision cost Owens 16 more months behind bars. Then, on that fall day in 2008, when the trial was set to begin, the prosecutor stood and, without a glance at Owens, told the judge, “The state declines to prosecute.”
In a legal gamble in which the prosecution typically holds the winning cards, Owens had called the state’s bluff. He walked out that day exonerated — and with the right to sue the state for the 21 years he spent wrongly imprisoned.
It seemed the ultimate victory in a city like Baltimore, with its deeply rooted and often justified mistrust of police and prosecutors. But Owens wasn’t the only man convicted of murdering that 24-year-old college student. Another white Baltimore man, James Thompson, had also been put away for life. Tests showed that his DNA didn’t match the semen either, but the state’s attorney’s office refused to drop the charges. Instead, as it had with Owens, it offered Thompson an Alford plea. Thompson grabbed the deal and walked out of prison a convicted murderer.
Same crime. Same evidence. Very different endings.
Ever since DNA ushered in a new era in criminal justice, even the toughest law-and-order advocates have come to acknowledge a hard truth: Sometimes innocent people are locked away for crimes they didn’t commit. Less widely understood is just how reluctant the system is to righting those wrongs.
Courts only assess guilt or innocence before a conviction. After that, appellate courts focus solely on fairness. Did everyone follow the rules and live up to their duties? Getting a re-hearing of the facts is a monumental, often decades-long quest through a legal thicket. Most defendants never get to start the process, let alone win. Even newly discovered evidence is not enough in many cases to prompt a review. And, for the tiny percentage of defendants who get one, the prosecutors still have the advantage: They have final discretion about whether to press charges and how severe they’ll be. Powerful influence over the pace of a case, the sentence and bail. And, compared with an incarcerated defendant, vast resources.
No one tracks how often the wrongly convicted are pressured to accept plea deals in lieu of exonerations. But in Baltimore City and County alone — two separate jurisdictions with their own state’s attorneys — ProPublica identified at least 10 cases in the last 19 years in which defendants with viable innocence claims ended up signing Alford pleas or time-served deals. In each case, exculpatory evidence was uncovered, persuasive enough to garner new trials, evidentiary hearings or writs of actual innocence. Prosecutors defend the original convictions, arguing, then and now, that the deals were made for valid reasons — such as the death of a key witness or a victim’s unwillingness to weather a retrial. The current state’s attorney in Baltimore County, Scott Schellenberger, said that “prosecutors take their oath to get it right very seriously” and wouldn’t stand in the way of exoneration if the facts called for it.
The menace of such deals, though, is clear: At worst, innocent people are stigmatized and unable to sue the state for false imprisonment, prosecutors keep unearned wins on their case records and those of the department, and no one re-investigates the crime — the real suspect is never brought to justice.
The plea deals ProPublica examined in Baltimore City involved two prior state’s attorneys. A spokeswoman for Marilyn Mosby, the current chief, didn’t respond to numerous requests for comment or for interviews with prosecutors in those cases.
The pleas in two of these Baltimore cases were later overturned after misconduct was uncovered in the original convictions, and the men won full exonerations. One, Walter Lomax, a black man convicted by an all-white jury shortly after the 1968 race riots in the city, served 38 years of a life sentence before taking a time-served deal in 2006. The state didn’t concede he was innocent until 2014.
Wrongful convictions are bad enough, Lomax said, but they’re even more “horrible when it becomes obvious the person is innocent and the state won’t at the very least acknowledge that.”
Some legal and cognitive science experts suggest that once detectives and prosecutors commit to a suspect and a theory of the crime, it changes how they evaluate evidence, and then the system itself exacerbates that focus at every step. Prosecutors are rewarded for proving and defending their theories, leaving little incentive to acknowledge weaknesses in cases, particularly in high-stakes crimes such as rape and murder. This mind-set is bolstered by one of the great positives of the system, one which legal experts, even those dedicated to exposing wrongful convictions, acknowledge: Prosecutors generally get it right.
Psychologists have a myriad of terms for the powerful, largely subconscious biases at play, but most people would call the collective phenomenon “tunnel vision.”
Wrongful convictions involving violent crimes typically involve poor, often minority defendants, sometimes with limited education or IQs, who are convicted on scant evidence or flawed forensics. The cases are fueled by an early theory of the crime that relentlessly drives the investigation and prosecution — even, in some cases, to official misconduct.
“At some point psychologically, you go from figuring out what happened to figuring out how to prove it happened the way you said it did,” Barbara O’Brien, a law professor involved with the National Registry of Exonerations at the University of Michigan, said. “It’s very difficult to take a step back from that.”
Marty Stroud, a former Louisiana prosecutor, made national headlines in 2015 when he penned a rare public apology for putting an innocent man on death row for 31 years. He told me recently that the system comes down hardest on those without the means to defend themselves. “It’s easy to prosecute those people and put them away and not think twice about it because no one is speaking for them,” he said.
The certitude of detectives and prosecutors hardens when their theory is validated by a judge or jury, and later, by an appellate court. Time, instead of allowing for fresh eyes, often makes biases worse. When a defendant like Owens gets a new hearing, the district or state’s attorney’s office — long committed to his guilt — has to re-justify that decision.
If they admit they got it wrong, prosecutors have to accept that a person was robbed of years of his life, the real perpetrator was never found, the victim’s family was let down, and, to top it off, they now have a cold case that’s unlikely to be solved. With the Alford plea, not only is the real perpetrator not caught but the case is officially closed on the books. It also dings their won-loss record on typically high-profile cases. The idea of a wrongful conviction, Stroud said, assaults a prosecutor’s sense of identity that “we’re the good guys. We have the white hats and are putting the bad guys in jail.”
Exonerations are also like a Pandora’s box in two important and unsettling ways. First, looking closely at why wrongful convictions happen — even in cases when everyone worked in good faith — could force a reckoning about deeply held beliefs on what is required to solve and punish crimes. False confessions, for example, often are a result of time-honored, and perfectly legal, tactics to soften up a suspect, such as lying or conducting questioning in the dead of night, said Steven Drizin, the former director of Northwestern University’s Center on Wrongful Convictions. When wrongful convictions are a result of misconduct, there could be a string of other bad convictions connected to that prosecutor or detective.
It’s no coincidence, many defense lawyers across the country say, that when misconduct comes up, prosecutors are quicker to propose an Alford plea or similar deal, effectively quashing any further inquiry into the behavior. One ACLU attorney told me about a galling Alabama case in which prosecutors insisted they would re-seek the death penalty, and it was “only because we were continuing to expose prosecutorial misconduct that they finally agreed to settle the case.”
On a muggy August evening in 1987, police officers swarmed a block of squat brick rowhouses in a mostly white, working-class neighborhood in southeast Baltimore. A young woman had been raped, strangled with a sock and stabbed to death in her second-floor bedroom. Detective Thomas Pellegrini, who’d been assigned to homicide only the year before and, who, by his own admission, was green enough not to sweat the details, caught the case as lead detective. He was assisted by Detective Gary Dunnigan and the squad’s boss, Sgt. Jay Landsman. The trio would become famous a few years later when David Simon heralded them in his book “Homicide: A Year on the Killing Streets” and on the subsequent prime-time TV show it inspired.
The next morning, the neighborhood reverberated with the choppy drone of police helicopters circling overhead. Thompson, a gas station attendant who’d suffered a brain injury in childhood, lived down the street with his wife and their two young boys. He’d heard detectives were looking for a knife and offering a $1,000 reward. It seemed a prime opportunity for a quick buck. The short, stocky 27-year-old wandered over to the yellow police tape and handed Pellegrini a large switchblade. Thompson said he’d found the bloody weapon in the grass the night before, pocketed it, and cleaned it at home — somehow unaware of the massive overnight police presence. At Pellegrini’s urging, he fetched a pair of cut-off jeans he said he’d been wearing at the time, which had a small bloodstain on the back right pocket.
Forensics showed a possible presence of blood or other unknown substance on a small area of the knife and no evidence to suggest it was used in a violent struggle, such as a broken tip from hitting bone. The detectives moved forward on the assumption it was the murder weapon.
Two days later, rather than being thanked and handed the reward money, Thompson found himself under suspicion. In a panic, he fingered Owens. The two had been casual friends, but they’d had a falling out over accusations of theft when they’d briefly worked together at the gas station. In a thoughtless burst of vengeance, Thompson gave an official statement at the police station; he said the knife was actually his but claimed Owens had stolen it and then told him where to find it the day after the murder. Thompson noticed the detectives ate up everything and realized they had nothing else to go on. At the time, there seemed to be no risk in just making it up as he went along. After he retrieved the knife, Thompson told detectives, Owens washed it in the kitchen sink. Thompson didn’t give the police any details about the murder, but he said Owens had told him he’d had sex with the victim.
Owens, 22 at the time, was arrested and charged with burglary, rape and first-degree murder. In just 72 hours, the detectives had closed the case. There was no forensic evidence, motive or eyewitnesses linking Owens to the crime. Landsman and Pellegrini would later say they had believed at the time that without Thompson, Owens would walk. Even the prosecutor, Marvin “Sam” Brave, said he viewed Thompson’s story as “implausible” and didn’t think he had the truth, but he nevertheless pressed charges.
Brave recently told me that “if you think you’ve got the right guy, but not that you can necessarily prove it beyond reasonable doubt, it doesn’t mean you don’t go forward.”
When Owens’ trial began in February 1988, Thompson was the star witness. He’d considered coming clean several times but was afraid he’d be sent to jail. He’d lied to the cops during a previous encounter and had been arrested for making a false police report. Despite that history, the detectives in this case had made him feel like a hero. Pellegrini didn’t think Thompson was “the sharpest pencil in the box,” but at that point in his career, he said in a recent deposition, he thought only suspects would lie to him. Brave also was unconcerned. “If the part that you think he is telling the truth [about] contributes to your case, you use it,” he said. “He doesn’t have to be telling the truth about everything.” The rest of the case relied mainly on minor scratches Owens, a factory worker, had on his arm and a spot of possible blood that had been swabbed from his hand. Two jailhouse snitches who’d been Owens’ cellmates while he awaited trial claimed he had separately confessed to them, though the story Owens purportedly told them contradicted the version Thompson had given police.
In his opening statement, Brave told the jury that any notion that police had “bungled the investigation” and the defendant was innocent was from the fantastical realm of television. But Brave was concerned enough about Thompson’s story that he took him aside the morning of his testimony and warned he was going to “look silly” and it was time he “told us the truth about how that knife really got back into his possession,” according to testimony Brave later gave about the conversation. He even assured Thompson he wouldn’t be prosecuted for making a false statement.
When Thompson took the stand, he told the jury he’d had a “heart to heart” with the prosecutor and was “ready to tell the truth.” In this new version of events — which Brave described later as “sellable” to a jury — Thompson said that around 8 a.m. the morning after the murder, Owens had come by his house and given him the bloody knife. Except this story, too, was a lie. As one of the detectives noted to Brave afterward, Owens’ boss had told police he’d been at work by that point in the morning. “The more I tried to fix things to go in my favor, the bigger hole I dug for myself,” Thompson told me recently.
That Friday Brave went home “really worried about the case,” and stewed over the weekend that he was on “a sinking ship.” Late Sunday evening, he met with Pellegrini and told him to take blood and hair samples from Thompson for testing to exclude him as a suspect and bolster his credibility as a witness. Brave already knew the pubic hairs found on the victim didn’t match Owens. Neither did saliva on a cigarette found at the scene.
During a lunch break at trial the next day, Brave and the three detectives met with the city’s forensics expert who, they said, told them the hair was a match to Thompson. Detectives brought Thompson in, read him his rights, and told him “he was in a lot of trouble” and might be charged. His hair, Landsman told him, had been found in the victim’s house. Thompson later contended he knew this couldn’t possibly be true — he hadn’t been there at all. But at the time, he said, he was scared and thought if he just said what pleased the detectives and got Owens convicted, he’d be alright.
Like an actor doing take after take to accommodate the wishes of a director, Thompson went through several more versions about what supposedly happened, adjusting his story to reflect additional pieces of evidence the detectives told him about. Thompson first said he broke into the house but didn’t go upstairs. After the detectives told him his hair had been found on the second floor, Thompson then said he did go upstairs but hid in the bathroom while Owens attacked the victim after she unexpectedly came home. Detectives then told him his pubic hair had been found on the victim’s buttocks, suggesting his pants must have been down. After several hours of this back and forth, Landsman went to the courtroom and handed Brave a note, saying Thompson had admitted to burglarizing the house with Owens.
Thompson was taken directly from the interrogation room to the witness stand to testify a second time. Now, speaking so softly at first that the judge twice had to tell him to raise his voice, Thompson said he and Owens had broken into the apartment to steal jewelry, and Owens attacked the victim when she came home unexpectedly. Then, while Owens raped her, Thompson testified that he masturbated over her back — his newly concocted explanation for how the pubic hair the state claimed was his had ended up on the victim. Owens, Thompson said, then stabbed her and threw the knife on the ground, which Thompson picked up on the way out.
This was, unbeknownst to Owens or his lawyer, Thompson’s eighth version of events — the one that satisfied the officers that they had enough “to get James Owens,” as one detective later put it.
Even on the stand implicating himself in the crime, with both Brave and Owens’ lawyer stressing charges he might face, Thompson said the full ramifications of his lies didn’t dawn on him. He thought he’d be fine once the trial was over.
“I never hurt anyone. I never touched that young lady,” Thompson said again and again on the stand, adding at one point that he’d take a polygraph to “prove my innocence on that particular behalf.”
Owens was convicted of the burglary and the murder but found not guilty of the rape. Thompson’s changing stories had cast enough doubt that Brave acknowledged in his closing argument that either man could have committed the rape. Thompson, who had been arrested right after testifying and immediately recanted his confession, was later convicted of burglary, rape and murder. Thompson’s multiple different stories of the crime had been accepted as truth, but his multiple attempts to protest his innocence were taken as lies.
Both men were sentenced to life without parole. Owens was the first in Maryland to receive such a punishment.
Owens never resigned himself to his fate. A few years into his sentence, he read about DNA in a magazine and implored everyone he could think of to test the evidence in his case. He eagerly conferred over coffee with Kirk Bloodsworth, the inmate across the hall, then cheered Bloodsworth’s exoneration by DNA in 1993, the first of its kind in the nation involving a death sentence. Shaking Bloodsworth’s hand when he left prison, Owens thought, “Man, one day I’ll be out there.” Then the O.J. Simpson trial introduced him to Barry Scheck, the founder of the Innocence Project, and Owens sent his office a letter. Shunned by his family and cut off from the way most convicts got cash, he traded chicken sandwiches from his kitchen job for stamps to mail it. Still, no one took up the cause. The semen found in the victim and the blood on Thompson’s shorts sat undisturbed in the Baltimore medical examiner’s office for 19 years.
Finally, after a special division within the Maryland public defender’s office became interested, he got a new lawyer and a hearing. A judge ordered DNA testing in 2006 — over the objections of prosecutors — and the results dismantled the state’s theory of the crime. At both trials, the state had argued that the break-in, the rape and the murder were inextricably linked. At Owens’s trial, the prosecutor told the jury Owens had leered at the victim as she sunbathed and “decided that he wanted her.” He broke into her house, laid in wait for her to return, raped her, strangled her and “for good measure … mutilate[d] her with multiple stab wounds.” The prosecution doubled down on this narrative at Thompson’s trial, telling the jury he and Owens “had to humiliate [the victim] by taking turns raping her.” And the blood on the back pocket of Thompson’s shorts, the prosecutor said, was definitively the victim’s.
DNA proved most of those arguments false. The semen found in the victim didn’t come from Owens or Thompson, and the blood on the shorts wasn’t even from a woman. It was Thompson’s own. When Owens heard the news at Jessup Correctional Institution, just southwest of Baltimore, he sat on the floor of his cell and cried.
The Baltimore City State’s Attorney’s Office was unmoved. Prosecutors fought both Thompson and Owens as the two separately sought to have their convictions overturned.
Owens’ case moved faster through the courts. His new attorney was Stephen Mercer, a Maryland defense attorney with an earnestness that had survived more than 20 years in the trenches. Mercer knew the state, with its evidence decimated, was going to push for a deal. He fumed that prosecutors were using psychological warfare to do it — opposing bail and slowing the case, so Owens would spend more time on the inside thinking about being on the outside. Owens’ evidentiary hearing was moved from January to March to May. Only then, nine months after the DNA showed Owens wasn’t the rapist, did the state agree to a new trial while insisting that Owens was still guilty of murder.
The state’s attorney’s office, run at the time by Patricia Jessamy, argued that the rape was immaterial to the murder, and, a spokeswoman said, the DNA evidence was “trivial.” Mark Cohen, the new prosecutor, told Mercer that other evidence in the case, including Thompson’s confession and the testimony of jailhouse informants, was still persuasive. (Jessamy didn’t respond to several phone messages requesting comment and Cohen has since died.)
Mercer said the prosecutor’s stance was “very cynical. It really seemed that the desire to keep the conviction was for reasons that had nothing to do with the evidence.” The state’s guiding star, Mercer knew, was a rigid belief that what was long ago decided by a jury, and upheld by an appellate court, shouldn’t be continually second-guessed.
In Owens’ case, it wasn’t just the semen and the blood that didn’t hold up 20 years later. The type of hair analysis done on the pubic hair had subsequently been dismissed as junk science. The hair, along with the knife, had been destroyed. But the state’s own expert, who’d inspected the hair at the time of the original trials, said at a hearing that the scientific community no longer does a visual hair comparison to “draw the conclusions we drew back in 1988 with a microscope.” Now analysts use DNA analysis.
Not long after Owens was granted a new trial in May 2007, Cohen proposed a deal. It wasn’t surprising. The plea bargain is the lifeblood of the overburdened criminal-justice system. About 95 percent of cases never go before a jury. Instead, most defendants agree to plead guilty in exchange for lesser sentences. In cases like Owens’, in which new evidence undermines old, legal advocates question whether incarcerated defendants should even be offered a plea. In every case, prosecutors “need to really inspect their own motivations,” Thiru Vignarajah, a former federal and Baltimore City prosecutor who later served as deputy attorney general of Maryland, said. “Are they offering a plea or time served because that’s in the best interest of the case, or are they allowing some institutional interest of preserving the conviction to trump a prosecutor’s duty to seek justice?”
A year before Owens’ retrial, Jessamy’s office had convinced another defendant to take an Alford plea. Locked up for 20 years, that defendant had at first refused a deal after he, too, was granted a new trial because of DNA evidence. As the trial was set to begin, the prosecution requested a postponement. When the state again delayed the subsequent trial date, the defendant broke down. He accepted the plea.
Afterward, Jessamy’s spokeswoman scoffed at the defendant in a news story, saying it was “inconceivable” that after 20 years the defendant couldn’t wait a little longer, and “if he truly believes he is innocent, he should have gone to trial to see that justice is served.”
As Owens’ trial got closer, Cohen kept sweetening the deal, knocking down the charge and requiring less probation. Finally, they offered Owens an Alford plea for second-degree murder, time served and no probation. Mercer lost sleep over whether Owens should take it. A trial was risky and a chance at guaranteed freedom was rare for any defendant. Owens repeatedly asked himself: “Why are they doing this to me? Why should I have to plead guilty to something I didn’t do?” Now mostly bald and with a moustache, he’d grown up in the foster care system. He’d been viciously attacked while in prison. He didn’t have much to hold onto except his resolute insistence from day one that he was innocent. He wasn’t about to “admit there was sufficient evidence to convict him while playing this wink-and-nod game that he was claiming his innocence,” Mercer said. So the Alford plea, like all the others Mercer had passed to Owens through the Plexiglass, was flatly rejected: “Mr. Mercer, there is no way. I am going to trial.”
Cohen, suspicious that the deal hadn’t been properly relayed, had Owens and Mercer join him for a bench conference, so that the Alford plea could be offered in front of the judge. “I’m not taking nothing, dude,” Owens recalled saying. “I will die in the penitentiary if I have to.”
In October 2008, Owens was vindicated. Cohen was forced to tell the court he didn’t have the goods for a retrial. Owens stepped out of prison free for the first time in 21 years, telling gathered reporters, “You can’t give me that time back.”
Thompson, meanwhile, was fighting the same battles while incarcerated about 75 miles away at Roxbury Correctional Institution in Hagerstown, Maryland. But in his case, prosecutors were employing a perplexing logic. They’d agreed that the DNA evidence from the semen warranted a new trial for Owens, who had not been convicted of rape, but they refused a new trial for Thompson, who had been.
Thompson, by now gray-haired and hard of hearing, was dismayed. He’d saved the newspaper clipping about the DNA findings, and when he read that Owens had gone free, he was certain he’d be next. He couldn’t understand why the DNA could clear Owens of all charges while it did nothing for him, even though the DNA excluded him as well. But Mercer, who’d picked up Thompson’s case after freeing Owens, did. Thompson had confessed, and that was prosecutorial gold. In Simon’s book about the Baltimore detectives who’d secured Thompson’s confession, he detailed the interrogation tactics they had commonly employed. To get confessions, he wrote, the detective became a “huckster … thieving and silver-tongued,” and without the “chance for a detective to manipulate a suspect’s mind, a lot of bad people would simply go free.”
Poorly understood at the time is that such manipulation can also compel innocent people to agree to whatever the police want. As the U.S. Supreme Court noted in 2009, “a frighteningly high percentage of people … confess to crimes they never committed.” According to the Innocence Project, 28 percent of defendants later exonerated by DNA had falsely confessed.
During the initial trials in 1988, prosecutors had argued that the pubic hair and the blood on the jeans proved Thompson was telling the truth, but in 2009 the Maryland Court of Appeals wrote that the DNA finding “usurps the State’s arguments all together.” In essence this meant none of Thompson’s statements to police or prosecutors throughout the case were corroborated by evidence.
Despite the statistics, convincing a jury that someone would falsely confess to a crime — particularly to something as heinous as a murder or a rape — is incredibly hard. Juries want to believe that people are rational actors, like themselves, with an almost primal instinct toward self-protection. It wouldn’t matter that the state no longer had the evidence to prove it, Mercer knew, a jury would most likely myopically focus on the confession.
Thompson told me he’d been happy for Owens when he was released — he’d always wished he could apologize to him for what he did — but that feeling had faded into self-pity as the calendar went from 2008 to 2009 to 2010 and his case stalled in the courts. Now he was mostly anxious. He just wanted relief, whatever it might be, so when Sharon Holback, the new prosecutor on the case, eventually offered him an Alford plea — 23 years after he’d first fatefully approached police — his excitement overwhelmed his sense of injustice.
Mercer worked to make it the best deal he could. If Thompson took the plea, it meant the state would let him go, but the deal had some risky strings attached. Any charge that carried a life sentence had to come off the table, because in Maryland, a probation violation — even something as relatively minor as a DUI — sends the defendant back to prison to serve the remainder of his sentence. The two sides agreed to second-degree murder, which carries a maximum of 30 years. That way if Thompson violated probation, he’d only have seven and a half years over his head, since he had served more than 22.
Gregg Bernstein, Baltimore City state’s attorney from 2011 to 2015, oversaw at least two similar deals. He couldn’t remember the details but said he’d thought a lot about whether it was okay for an innocent man to take an Alford plea. In the end, he said, most cases lack black-and-white certainty, regardless of evidence suggesting innocence. “It’s not that simple to say yay or nay,” he said. “Pleas are a way to resolve them.”
Former prosecutor Vignarajah, though, told me he wonders if that kind of resolution only looks like a win for everyone on paper. “In reality everyone lost,” he said. “The victim sees no justice. The defendant is walking away with a conviction. And the prosecution didn’t get anyone to take responsibility [for the crime].”
On July 29, 2010, when Thompson left prison under the Alford plea, Holback got the last word: Thompson “is in no way exonerated.”
Since their releases, Thompson and Owens have led dramatically different lives.
Thompson thought he could go back to the person he was almost 23 years earlier, before the murder rap, but society didn’t look at him that way. When he applied for a job, he put a question mark where the form asked if he’d been convicted of a felony.
“I tried to explain I was wrongfully convicted, but people don’t want to hear that,” Thompson said. “There’s no reasoning with somebody. ‘Innocent people do not go to prison’ is just the motto.”
Thompson held onto his freedom for only a little over a year. In October 2011 he was arrested after his ex-girlfriend claimed that he had molested her young daughter. Thompson, who’d recently kicked the girlfriend out of his apartment, denied the charge, saying he’d spanked the girl’s bare butt to discipline her. The state reduced the charges to a misdemeanor for touching the girl’s buttocks and gave him time served for the five months he’d been in jail.
It didn’t end there, though. Because the misdemeanor violated his probation attached to his Alford plea, Thompson went from a local jail to a state prison to serve the remaining seven and a half years.
Mercer said he believes the Alford plea made it very difficult for Thompson to defend himself. “It was a question of credibility,” Mercer said. “Who’s going to believe him? He was stuck having to do damage control.”
Owens has fared better. He has been embraced by what little family he had. He has moved into a cousin’s house and has begun working with him cleaning gutters and doing landscaping. And he has grown close to his nieces and nephews, a bittersweet feeling for someone who’d had no chance to build a family of his own. Owens told me he has tried not to let the anger sink him, but he struggles. His exoneration came without compensation or even an apology. “What’s striking in these cases is a total lack of accountability,” said Michele Nethercott, of the Innocence Project in Baltimore. “Nothing ever really happens” to the police and prosecutors whose actions led to wrongful convictions.
Owens wonders today if his prosecution became all about keeping the win. “Instead of focusing on me and getting me to take a deal for something I didn’t do, they need to focus on the victim. Her murder has never been solved,” he said. “I think they should go back and look and do something for this girl.”
In 2011, Owens found a lawyer, Charles Curlett, to sue Baltimore. Curlett determined that there were several issues of misconduct involved in Owens’ conviction. First, his lawyer had been told nothing of the changing stories Thompson gave the detectives. The information could have been used to undermine Thompson’s credibility and failing to share it was likely a violation of Owens’ due-process rights. Such failures are known as Brady violations, after a 1963 Supreme Court case in which the justices determined that withholding favorable information from the defense is unconstitutional. Also, one of the jailhouse snitches who testified that Owens had confessed had been a police informant for years and said he recruited the other snitch. This, too, wasn’t revealed to the defense, nor were the informant’s letters asking for favors in exchange for his testimony.
Brady violations had become so prevalent in Baltimore’s courts that the Fourth Circuit Court of Appeals recently admonished the city’s prosecutors to remember their legal obligations: “Only this practice ensures the fair trial that our justice system aspires to provide” and makes it so “no one has to worry after the fact whether the jury convicted the wrong person.”
The city furiously fought Owens. Dodging such suits, many defense lawyers contend, is part of what drives these plea offers. “If not expressly that, it’s implicit in a lot of decisions made in this setting,” said Michael Imbroscio, an attorney who had a client in Baltimore City take a time-served deal. The city won dismissal of Owens’ suit against the state’s attorney’s office and Brave, who the court ruled had immunity, and the Baltimore Police Department. But the case is going to trial in federal court, likely early next year, against detectives Pellegrini, Landsman and Dunnigan as individuals. There’s millions in compensation at stake for Owens and a public airing of misdeeds for the city.
Civil litigation is “so important,” Mercer said. “Often, that’s the only time there’s scrutiny into what wrongs were done.”
The type of misconduct alleged in Owens’ case is echoed in nine more of the 14 exonerations out of Baltimore City and County since 2002, according to the National Registry of Exonerations. The 2014 exoneration of Sabein Burgess, for example, came after it emerged that Baltimore detectives never revealed a key detail to the defense: that a young witness had told them he saw the murder suspect and it wasn’t Burgess. The detectives even submitted a report falsely stating that the witness had been asleep during the crime. Like Owens, Burgess is suing, claiming that detectives “cut corners and rushed to judgment.” His trial is set for this fall and names a different group of detectives.
Misconduct can also be found in the cases of some of the remaining exonerated defendants who, like Thompson, aren’t officially considered exonerated at all but who were released under Alford pleas or time-served deals after questions were raised about their initial convictions. Curlett is representing one such man, Wendell Griffin, who was convicted of murder in Baltimore in 1982. Decades later, it came to light that three detectives — two also featured in Simon’s book and a third who is Landsman’s brother — had buried photo lineups and witness statements pointing to Griffin’s innocence. He was let out on a time-served deal in 2012.
The detectives named in the Owens and Burgess lawsuits have denied allegations of misconduct. Michael Marshall, who represents the detectives in Owens’ and Griffin’s suits, declined to comment, referring questions to the chief of legal affairs for the Baltimore City Police Department, who didn’t return several calls.
Thompson, whose parents died while he was in prison, has been abandoned by the rest of his family. He was released early for good behavior in February after serving a little more than five of his remaining seven and a half years, and as much as he blames himself for his mistakes, he now thinks his plea was a “bum deal.” He wishes there was a way to prove to his loved ones that “although I served 30 years … I didn’t commit the crime.”
The strain of the Alford plea proved too much for one of Baltimore’s wrongly convicted. Chris Conover left prison under the plea in 2003 after DNA called into question his murder conviction in Baltimore County. On the outside, he suffered from severe panic attacks and depression, but his wife told the local newspaper that he couldn’t face in-patient treatment, which meant being back behind locked doors. His petition for a pardon from Maryland’s governor was turned down in 2012. Three years later, Conover killed himself.
“Having been convicted really defines who you are — it becomes itself a prison,” Mercer said. “Once out, with a conviction still on your shoulders, having maintained your innocence in a Alford plea is of little comfort and of very little practical benefit.
Editor’s note: Hurricane Harvey dumped up to 50 inches of rain on parts of Texas and Louisiana last month. Meanwhile, Hurricane Irma is bearing down on Florida, which will also likely cause substantial flooding.
Homeowners generally rely on insurance provided by the federal government to cover the costs of rebuilding their lives after a flood. We asked an insurance expert to explain the government program and its challenges.
What is flood insurance?
Homeowners’ insurance does not cover damage to a home caused by flooding. A homeowner must have a separate policy to cover flood-related losses, defined as water traveling along or under the ground.
Most such policies are underwritten by the National Flood Insurance Program, which is part of the Federal Emergency Management Agency. The National Flood Insurance Program was established in 1968 to address the lack of availability of flood insurance in the private market and reduce the demand for federal disaster assistance for uninsured flood losses. Another purpose was to integrate flood insurance with floodplain management, which includes such things as adopting and enforcing stricter building codes, retaining or restoring wetlands to absorb floodwaters and requiring or encouraging homeowners to make their homes more flood-resistant.
The National Flood Insurance Program’s activities are funded largely by the premiums and fees paid by its policyholders, supplemented by a small amount of general funds to help pay for flood risk mapping. Because the National Flood Insurance Program serves the public interest, some believe that more of its funding should be borne by taxpayers.
Homeowners can purchase a federal flood policy directly from the National Flood Insurance Program or through a private insurer. Separately, some private insurers sell their own flood policies on a limited basis for properties that are overcharged by the National Flood Insurance Program.
How many American homeowners have flood insurance?
It is difficult to determine exactly how many homeowners have flood insurance.
The National Flood Insurance Program had just under five million policies in force as of June 30. Of these policies, approximately 68 percent were on single-family homes and 21 percent on condo units. There is no source on how many private flood policies are in force, but my sense is that it is very small relative to the number of National Flood Insurance Program policies.
In recent years, the number of such policies has been dropping across the country. Some of the counties hardest hit by Harvey, for example, such as Harris (which includes Houston), have experienced significant declines.
A more revealing – and more difficult to ascertain – stat is the share of homeowners in a disaster area who actually have flood insurance. In Harris County, for example, experts estimate that only about 15 percent of homeowners are insured for floods – though the percentage should be higher in areas near coastlines.
Real estate data company CoreLogic estimates that approximately 70 percent of flood losses from Harvey will be uninsured.
Why do people at great risk of flooding forgo insurance?
People who perceive that their exposure to floods is high are more likely to buy it, all other things equal. And the mandatory purchase requirement forces owners of mortgaged homes located in Special Flood Hazard Areas – areas at high risk for flooding – to buy insurance.
However, 43 percent of homeowners incorrectly believe that their homeowners’ insurance covers them for flood losses.
Other factors also come into play, such as a lack of information, the difficulty of calculating flood risk and the expectation that the government will provide disaster assistance – which is rarely the case.
What does flood insurance cover?
With a National Flood Insurance Program policy, a homeowner can purchase coverage on a dwelling up to US$250,000 and the contents of a home up to $100,000. It does not cover costs associated with “loss of use” of a home.
The National Flood Insurance Program policy limits have been in effect since 1994 and need to be updated to account for the increase in the replacement cost of homes and the actual cash value of their contents. Although not the best measure of the replacement cost, the median price of new homes sold in the U.S. has soared 132 percent since 1994.
Some homeowners buy additional flood protection from private insurers to make up any shortfall.
Why is the National Flood Insurance Program underwater?
The National Flood Insurance Program has faced considerable criticism over its underwriting and pricing policies, which have resulted in a substantial debt. Essentially, its premiums are not high enough to cover how much it pays out on claims and its other costs.
Part of the problem is that about 20 percent of the properties the program insures pay a subsidized rate. But many other National Flood Insurance Program policyholders are also paying premiums substantially less than what it costs to insure them because the rates do not adequately account for the catastrophic losses incurred during years when more major storms than normal strike, such as Katrina and Rita in 2005 and Sandy in 2012. As a result, the National Flood Insurance Program owes an accumulated debt of $25 billion to the U.S. Treasury.
Hurricane Harvey (and potentially other storms such as Irma that may follow) will substantially increase this debt. CoreLogic estimates that National Flood Insurance Program-insured flood losses from Harvey alone will be $6 billion to $9 billion.
In the short term, Congress will have to increase the National Flood Insurance Program’s borrowing authority for it to pay the claims that will result from Harvey and other storms this year. Lawmakers could make a general fund appropriation to forgive all or a portion of the National Flood Insurance Program’s debt, but it has shown no interest in doing so.
These inadequate rates also exacerbate the moral hazard created by flood insurance. People are more likely to buy, build or rebuild homes in flood-prone areas and have diminished incentives to invest in flood risk mitigation, such as by elevating their home, if they can buy insurance at below-cost rates.
What can be done to fix the program?
Legislative efforts to reform the National Flood Insurance Program to put it on firmer fiscal footing have produced mixed results.
Fundamentally, the program millions of Americans rely on to help them rebuild their lives after a devastating flood needs to be fixed. Its dire financial straits could be resolved by either making taxpayers foot more of the bill or increasing premiums closer to full-cost rates for most homeowners, while also raising total coverage levels.
At the same time, the government needs to do more to convince or compel more at-risk homeowners to buy flood insurance – which would be harder to do if it were to raise rates. To me, this suggests that increasing taxpayer support for the NFIP will have to be part of the solution so that pricey premiums don’t become a deterrent to someone buying insurance.
With the likelihood of much more flooding in the coming weeks and years, more needs to be done to mitigate the risk, including producing more accurate and timely maps of the flood risk in various areas, especially high-risk areas, educating people about what those risks really mean and helping relocate homeowners as necessary.
Robert W. Klein, Director, Center for RMI Research, Associate Professor, Risk Management and Insurance, Georgia State University