Category Archives: Uncategorized

St. Louis May be Violating 8th Amendment Rights of the homeless

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.

Constitutional Violations

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.

Housing First

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.

Civil Disobedience and Protest

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. 

King stated in his "Letter from Birmingham Jail", "we should never forget that everything Adolf Hitler did in Germany was legal". 


Know Your Rights: Demonstrations and Protests

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.

Specific problems

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?

Yes.

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:

 Protester Rights

St. Louis Protest Organizations

Where Protest Fails, Violence Prevails

Protest Minus Disruption or Violence Equals Failure 

What hundreds of American public libraries owe to Carnegie’s disdain for inherited wealth

 “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

File 20171006 25775 gt1jmy.jpg?ixlib=rb 1.1The Girard, Kansas Carnegie library. National Park Service

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.

The Medford, Oregon public library, depicted in this postcard, is a classic example of Carnegie library architecture. Offbeatoregon.com

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.”

This postage stamp depicted the steelmaker in a library, halfway through a book.

Supporting communities

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.

The Michigan eLibrary, however, gets federal funding through the Institute of Museum and Library Services. And the Trump administration has tried to gut this spending on local libraries. Given Carnegie’s passions, he surely would have opposed those cuts, along with the bid by President Donald Trump and Republican lawmakers to get rid of the estate tax.

George Soros, right, eyed the busts of Andrew Carnegie on a mantel, as he sat with the late David Rockefeller in 2001 when they were among the first recipients of the Carnegie Medals of Philanthropy. AP Photo/Richard Drew

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.

The ConversationEditor’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.


Article republished with permission under license from The Conversation. Read the original article.

Boycott NFL if Players are Forced to Stand for Anthem

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.

As Nick Canon's spoken word poem recently stated, "Stand For What!"

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.

How the Bankruptcy System Is Failing Black Americans

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.


Highland Meadows, the Whitehaven apartment complex where Novasha Miller lived previously (Andrea Morales for ProPublica)

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.

Miller in her living room near a collection of her sons’ trophies (Andrea Morales for ProPublica)

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.”

Michael Baloga, a bankruptcy attorney with Long, Umsted, Jones & Kriger, outside his office in downtown Memphis. More than 90 percent of the time, the firm files under Chapter 13 for its largely black and low-income clientele. (Andrea Morales for ProPublica)

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.

Black households are particularly vulnerable to financial difficulties like these. They have less incomefewer assets, and less financial stability than white ones — all deficits with deep roots. When they are hit with financial emergencies (a cut in pay, a needed car repair), they are less likely to have the resources to withstand them. The same vulnerabilities that make black Americans more likely to file for bankruptcy make them less likely to succeed in bankruptcy.

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.

Jerome Payne, one of the few black bankruptcy attorneys in Memphis. Payne has filed more Chapter 7s on behalf of black clients than any other attorney in Memphis in recent years. (Andrea Morales for ProPublica)

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.”

A bookcase in Payne’s Memphis office. Because his clients are “people who look like me,” Payne said, “they feel more comfortable with me.” (Andrea Morales for ProPublica)

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.

 


See our Bankruptcy Law page for additional information

Stand For What?

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

Stand for what?

I ain't standing For Shit… except Kaepernick!"


The Freedom Plea: How Prosecutors Deny Exonerations by Dangling the Prison Keys

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.”


George Seward

  • Convicted: 1985
  • Released: 2016
  • Type of Deal: Alford plea
  • Crime: Rape
George Seward with his mother on the day of he got out of prison after 32 years. A judge had granted him a writ of innocence, but prosecutors vowed to retry him. He took an Alford plea to guarantee his immediate release.

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.

Prosecution Reaction

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.


Jesse Barnes

  • Convicted: 1972
  • Released: 2011
  • Type of Deal: Time served
  • Crime: Murder
Barnes was convicted of murder when he was 17 based off of nothing more than his uncorroborated confession, which also described a violent rape.

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.

Prosecution Reaction

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.”


Wendell Griffin

  • Convicted: 1982
  • Released: 2012
  • Type of Deal: Time served
  • Crime: Murder
Wendell Griffin walked out the back door of a Baltimore courtroom on May 23, 2012, free for the first time in nearly 31 years. Griffin, who’d been convicted of murder, was let out on a time-served deal after evidence pointing to his innocence was discovered buried in a police file. 

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.

Prosecution Reaction

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.


Antoine Pettiford

  • Convicted: 1995
  • Released: 1998
  • Type of Deal: Alford plea (exonerated in 2000)
  • Crime: Murder
Antoine Pettiford was convicted of murder in 1995, but was let out on an Alford plea three years later when a court ruled that the detectives and prosecutors deliberately withheld evidence from the defense. He was fully exonerated in 2000 after more evidence came to light. Pettiford was killed in 2015.

Original Case

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.

Prosecution Reaction

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.


See Related Story

What Does an Innocent Man Have to Do to Go Free? Plead Guilty.

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.

Republished with permission under license from ProPublica

What Does an Innocent Man Have to Do to Go Free? Plead Guilty.

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

James Owens, now 52, was sentenced to life in prison without the possibility of parole in 1988 for a murder he didn’t commit.

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.”

After James Thompson brought police a knife that he claimed to have picked up near a murder victim’s home, a Baltimore police officer posed with the weapon. A local TV news station filmed police taking the photo and erroneously reported that the police had found it. “There’s a real danger in staging things like this,” said Stephen Mercer, a Maryland public defender. (Baltimore Police Department file, courtesy of Stephen Mercer)

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.”

A Baltimore Police Department photo of James Owens from August 5, 1987, the day Owens, 22, was arrested for murder.

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.

In 1988, Baltimore's forensic examiner wrote on the back of a picture of Thompson's hair that his hair matched one found at the crime scene. In 2010, the same examiner said pictures of the hair showed that they didn't match, moreover that type of hair analysis was no longer considered valid. (Baltimore Police Department file, courtesy of Stephen Mercer)

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.

Stephen Mercer, chief of the forensics division of the Maryland Office of the Public Defender, dug up exculpatory evidence for three defendants — James Owens, James Thompson and Wendell Griffin — who had been sentenced to life and secured their release from prison.

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.”

es Thompson, 57, has been out of prison for less than six months and is trying to get his life back on track. After DNA cleared him of the rape, he took an Alford plea to be released from prison. “Did I want to take that? Absolutely not. But I wanted to go home.”

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.”

Thompson set into motion the prosecution of Owens, and eventually himself, when he lied about finding the murder weapon to get a $1,000 police reward. He then falsely testified that he saw Owens commit the rape and murder. “I’m really ashamed,” he said. “Why I did what I did, I can’t explain it.”

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.”

Owens will go to court early next year in his lawsuit against the detectives who investigated him. He alleges the detectives violated his constitutional right to a fair trial by withholding key material from his lawyer.

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.


See Related Story

The Freedom Plea: How Prosecutors Deny Exonerations by Dangling the Prison Keys

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.

Republished with permission under license from ProPublica

How flood insurance works: 6 questions answered

By Robert W. Klein, Georgia State University

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.

Hurricane Harvey on August 26, 2017

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?

A number of factors affect a homeowner’s decision to buy flood insurance (or not).

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.

The Biggert-Waters Act of 2012 made a number of changes to the program, such as increasing premiums and other changes to make it “more financially stable,” that would have gone a long way to restore its fiscal solvency. However, an outcry from homeowners in high-risk areas such as coastal Florida led to the Homeowners Flood Insurance Affordability Act, passed in 2014, that limited or rescinded many of the Biggert-Waters rate increases.

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.

The ConversationWith 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


Republished with permission under license from The Conversation

Media Largely ‘Blind’ to Harvey’s Devastating Impact on Poor Communities

"Hurricanes don't care if you're rich, poor, white, or black—but that doesn't mean that every person is equally vulnerable to a storm."

People wait to be rescued from their flooded homes after the area was inundated with flooding from Hurricane Harvey on August 28, 2017 in Houston, Texas. (Photo by Joe Raedle/Getty Images)

Texas's minority and low-income communities have been disproportionately harmed by Hurricane Harvey, but you wouldn't know it from following the coverage of America's mainstream media outlets.

"Low-income families are more likely to live in flood-prone areas with deficient infrastructure." 
—Jeremy Deaton, ThinkProgress

As Neil deMause notes in an analysis for Fairness & Accuracy in Reporting (FAIR), "nearly 600,000 Harris County residents live below the poverty line," yet "one had to read carefully between the lines" to find their stories told in any detail.

"Coverage of the poor during Harvey [has been] a bit better than in Katrina, but that's not saying much," deMause wrote on Twitter.

From the Associated Press to the New York Times, the national media has consistently shown its "blindspot for low-income victims," deMause concludes.

But, as many have pointed out, it is low-income and minority communities that always bear the brunt of natural disasters like Hurricane Harvey.

"Hurricanes don't care if you're rich, poor, white, or black—but that doesn't mean that every person is equally vulnerable to a storm," observes Jeremy Deaton of ThinkProgress. "Low-income families are more likely to live in flood-prone areas with deficient infrastructure."

Robert Bullard, professor of urban planning and environmental policy at Texas Southern University in Houston and "the father of environmental justice," told Deaton that "low-income communities and communities of color don't get the necessary protection when it comes to flood control. Generally, the way that the city has grown and the way that the housing and residential patterns have emerged have often been along race and class lines."

Often these housing "patterns" didn't merely emerge, but were the result of policies designed to "perpetuate segregation."

Bullard goes on to note that Houston—which was hit particularly hard by Hurricane Harvey—"spends more on infrastructure in wealthier neighborhoods. That means bicycle lanes and jogging trails but also embankments that keep floodwaters at bay. Low-income communities tend to lack these features."

"Rebuilding will be a long and painful process for people with so few resources." 
—Neena Satija and Kiah Collier, The Texas Tribune

Not only do these communities lack the some of the protective components of their rich counterparts. As Neena Satija and Kiah Collier of The Texas Tribunehave noted, they also lack a social safety net to help them cope with the aftermath of the storm.

"Hundreds of families have been displaced from city-owned public housing complexes that flooded in the wake of Harvey," Satija and Collier write, citing an adviser for the Houston Housing Authority. "Rebuilding will be a long and painful process for people with so few resources."

Adding to these concerns is the fact that low-income communities in Houston are often also the site of major oil refineries and chemical facilities.

"For decades, Houston has been home to an immense concentration of chemical and plastics plants, oil and gas refineries, Superfund sites, fossil fuel plants, and wastewater discharge treatment plants," Sierra Club has observed. "The overwhelming majority of these facilities were constructed in communities of color, only adding to the burden felt from this disaster. Now, in the wake of Hurricane Harvey, the threat posed by these facilities has been magnified."

In an interview on Democracy Now! earlier this week, Dr. Bullard concluded that "when we talk about the impact of sea level rise and we talk about the impacts of climate change, you're talking about a disproportionate impact on communities of color, on poor people, on people who don’t have health insurance, communities that don't have access to food and grocery stores."

Watch the full interview:


Republished with permission under license from CommonDreams