More On Money Bail In Maryland

I wrote about the problems with Maryland’s bail system in criminal cases back in September. Summary: our system sucks. One thing I didn’t write about back then was the current legislative stalemate over how to fix the system following a court ruling. A quick history primer:

Back in 2012, the Court of Appeals held that, contrary to what was actually happening, defendants had a right to counsel at bail hearings, including the initial determination by a commissioner. This was a bombshell ruling – in FY 2011, District Court commissioners conducted 176,523 initial appearance hearings, 30% of them in Baltimore City alone. The costs do providing counsel for all those hearings was and remains staggering.

In response to that ruling, the General Assembly in 2013 set out to restructure the bail system in Maryland. Three legislative sessions later, no resolution has been reached. Why not? On the surface, it’s a dispute between the House of Delegates and the State Senate. The Senate had been in favor of more comprehensive reform, while the House supports more limited reform and at least some resistance to the court ruling. Now the issue appears largely dead.

But on a more basic level, change has been slow to come because of the influence of the bail bond lobby. Being a bail bondsman is a lucrative business, and its best source of profits is poor families desperate to get their loved ones out of jail. As my last story pointed out, “defendants of color are given higher bail amounts and are detained more often than white defendants.”

The Washington Post editorialized in 2013:

The bail bond industry has powerful allies in Annapolis, where many lawmakers are trial lawyers. Eliminating the system wholesale may not be politically possible, at least for now. But the idea should get fair consideration. Even if the state is compelled to hire scores of public defenders to ensure defendants’ constitutional rights, it can also make the system fairer and more sensible by providing non-monetary means of encouraging defendants to appear in court.

As is so often the case, the Post overshot the mark by smearing every “trial lawyer” in the legislature, and there aren’t “many” such lawyers any longer, as the number comes down every election. But the Post isn’t wrong. There are impediments to real reform. Hint: one of the principal opponents of real bail reform in the legislature is no longer there, while a current legislator is now in a stronger position to advocate the industry’s interests than was the case when the editorial was published. Moving on . . .

OK, that was a super long intro, but here’s the point. Nothing is moving in the legislature any time soon. Tens of millions of dollars are being spent on ad hoc efforts to get lawyers to cover initial bail hearings. Racial and socioeconomic effects persist. Time for a new strategy. The rallying cry of the “trial lawyers”: to the courthouse!

The lawsuit filed by the Equal Justice Under Law in San Francisco federal court in October seeks to abolish the cash bail system in the city, state — and the country. It’s the ninth lawsuit the center has filed in seven states.

“The bail system in most states is a two-tiered system,” said center founder Phil Telfeyan. “One for the wealthy and one for everyone else.”

The center has settled four lawsuits, convincing smaller jails in states in the South to do away with cash bail requirements for most charges.

Telfeyan said a win in California could add momentum to the center’s goal to rid the country of the cash bail system, which the lawyers say is used by most county jails in all 50 states. The federal system usually allows non-violent suspects free without bail pending trial and denies bail to serious and violent suspects.

The bail bond industry ignored the suit originally, but has now jumped in after government lawyers in San Francisco responded with insufficient vigor to defend the bail bond industry’s profits. Sound familiar?

But on Monday, lawyers for the California Bail Agents Association filed court papers seeking to formally oppose the San Francisco lawsuit. The association argues that government lawyers for San Francisco and the state are offering only “tepid” opposition to the California lawsuit.

San Francisco Sheriff Ross Mirkarimi argues that most jail inmates are awaiting resolution of minor, non-violent crimes and that letting them free while awaiting court hearings will save the city millions of dollars. Mirkarimi said non-violent suspects can be monitored electronically and with frequent visits from law enforcement officials to ensure they don’t flee the area and attend all their court hearings.

The for profit bail bond industry has outlived its usefulness, if it ever had any. It’s rife with corruption, it’s insufficiently regulated, and it perpetuates existing de facto discrimination in the court system. It’s time for it to go, and there are alternatives.

A lawsuit in Maryland like the one in San Francisco would help to bring about real and necessary change. The only change that’s happened yet was started by such a lawsuit. Now it’s time to go for the home run ball. Who’s up for this? 

Memo to Fred Hiatt: Your increasing neocon sensibilities are affecting your reasoning processes (shockingly, the Justice Policy Institute analysis linked above notes the connection between the bail bond industry and ALEC, the right wing state legislative arm, creating alarming levels of cognitive dissonance for the Post, I’m sure). Dude, sometimes it’s those nasty “trial lawyers” that bring about the changes for good in this country, and I mean, y’know, Brown v. Board of Education and all that? Put the blame where it belongs: the bail bond industry.

Think We’ve Solved All The LGBTQ Issues?

Guess again. This shocked even me, and I’m pretty jaded about criminal law and LGBTQ issues.

It may shock you to learn that 40 percent of the young girls incarcerated in juvenile detention center identify as LGBT.

Like the unbelievable number of homeless youth who identify as queer, LGBT young people are also disproportionately affected by systems of power that can cause them to become caught up in cycles of poverty and incarceration — particularly queer youth of color.

HuffPost Live sat down this week to talk about the importance of broadening our scope when thinking about the ways that marginalized groups are impacted by the prison industrial complex.

“I think statistics like that really identify the importance for us to think intersectionally,” Jonathan Lykes, policy analyst for the Center for the Study of Social Policy, says in the above clip. “A lot of times when we think about the criminal justice systems it’s often directed at young black men… this is not only about young black men, it’s about young black trans women, it’s about young cis women, it’s about the LGBTQ population also. So really understanding how all of these different populations are impacted by these oppressive systems.”

There’s a longer video clip that can be viewed here.

h/t Kevin Gillogly for sending me the link

Good Riddance

This is too good. Don’t let the door hit you in the ass on the way out, sister.

Kim Davis, the clerk of Rowan County, Ky., who was embraced by Christian conservatives because of her resistance to same-sex marriage, said Friday that she would shun her Democratic Party roots and become a Republican.

“She has come to the conclusion that the Democratic Party has left her,” Mathew D. Staver, a lawyer for Ms. Davis, said in a statement. “She has decided to switch her voter registration.”

Bigotry and refusal to follow the law are so much more compatible with the GOP. 

Bottom Feeding Predators

This is long but bear with me. It’s important.

I practiced law for over 20 years, almost 17 of them as a sole practitioner. I’ve seen a lot of shady practices, from bail bondsmen to online lawyer referral outfits, and more. Probably the worst thing I’ve ever seen was funding companies looking to arrange structured settlements.
In the vast majority of personal injury or other tort cases, when the car gets settled, insurance companies or corporate defendants pay the full value of settlements all at once, immediately. In rare circumstances – I’ve never done one, although it was occasionally raised in a few cases – a structured settlement will be arranged, with a down payment (usually to pay the legal fees and costs) up front and monthly payments made over time. Insurers and businesses will arrange an annuity to make the monthly payments. The devil in these deals is in the details: what kind of discount rate is appropriate, what’s the present value of a monthly payment stream over 10 years, etc. Defendants try to use a higher discount rate and spread the payments over longer periods. Scrupulous lawyers try to get lower discount rates, raising the present value of any given settlement.  

Why ever even think about doing things this way? Because in some situations, such as lead paint cases or other cases with grievous injuries, the person receiving the money is in no position to manage a large sum of money. If they got it, they might blow it: drugs, gambling, moocher friends, and the like. We’re talking brain damage, serious impairment, and sometimes simply the lack of education and skills to manage one’s own affairs. So a $1,000 or $1,500 per month payout can help with personal expenses while keeping the recipient from blowing several hundred thousand dollars – sometimes more.

I still don’t like structured settlements and never did them when I worked for myself, because they create what I see as an enormous and irreconcilable conflict of interest for a lawyer. I’d get my money up front in these deals, based on some calculated present value that may or may not have been based in reality, while the client would be left to best the risk of any unforeseen economic downturn. That’s just wrong, although it clearly does happen and I acknowledge that there are times when it should be considered.

What is happening now – right here in the Free State – is an appalling abuse of an already ethically shaky system. Having negotiated an income stream from an annuity company, lead paint victims are being preyed upon by the vilest of scumbags, who seek to buy these payment streams out for pennies on the dollar – and that’s after factoring for present value. The Post has the repulsive details.

There are sleazy companies looking to buy income streams. There are lawyers out looking for clients to “advise,” which usually result in form court submissions that nobody bothers to change from one case to the next, and although the sellers are almost all from Baltimore City, the cases get filed in Montgomery, Prince George’s and Howard counties, because judges there are more likely to sign off on the details no matter how one-sided they might be.

Example:

The letter arrived in April last year, a mishmash of strange numbers and words. This at first did not alarm Rose. Most letters are that way for her — frustrating puzzles she can’t solve. Rose, who can scarcely read or write, calls herself a “lead kid.” Her childhood home, where lead paint chips blanketed her bedsheets like snowflakes, “affected me really bad,” she says. “In everything I do.”

She says she can’t work a professional job. She can’t live alone. And, she says, she surely couldn’t understand this letter.
So on that April day, the 20-year-old says she asked her mom to give it a look. Her mother glanced at the words, then back at her daughter. “What does this mean all of your payments were sold to a third party?” her mother recalls saying.
The distraught woman said the letter, written by her insurance company, referred to Rose’s lead checks. The family had settled a lead-paint lawsuit against one notorious Baltimore slumlord in 2007, granting Rose a monthly check of nearly $1,000, with yearly increases. Those payments were guaranteed for 35 years.
“It’s been sold?” Rose asked, memories soon flashing.
She remembered a nice, white man. He had called her one day on the telephone months after she’d squeaked through high school with a “one-point something” grade-point average. His name was Brendan, though she said he never mentioned his last name. He told her she could make some fast money. He told her he worked for a local company named Access Funding. He talked to her as a friend.
Rose, who court records say suffers from “irreversible brain damage,” didn’t have a lot of friends. She didn’t trust many people. Growing up off North Avenue in West Baltimore, she said she’s seen people killed.
But Brendan was different. He bought her a fancy meal at Longhorn Steakhouse, she said, and guaranteed a vacation for the family. He seemed like a gentleman, someone she said she could trust .
One day soon after, a notary arrived at her house and slid her a 12-page “purchase” agreement. Rose was alone. But she wasn’t worried. She said she spoke to a lawyer named Charles E. Smith on the phone about the contract. She felt confident in what it stated. She was selling some checks in the distant future for some quick money, right?
The reality, however, was substantially different. Rose sold everything to Access Funding — 420 monthly lead checks between 2017 and 2052. They amounted to a total of nearly $574,000 and had a present value of roughly $338,000.
In return, Access Funding paid her less than $63,000.

Maryland has a law that is supposed to regulate this kind of naked theft. It doesn’t work.

Over the past two decades, state legislatures and the U.S. Congress have passed measures to protect vulnerable people selling structured settlements. In 2000, Maryland inked the Structured Settlement Protection Act, which enumerated a series of requirements. First, a seller must seek the counsel of an independent professional adviser. Then the proposed deal must go before a county judge, who decides whether that agreement reflects the seller’s best interests.

Here’s the problem, among others.

To balance clients’ vulnerabilities with purchasing companies’ desire for profit, most state legislatures called upon county judges to decide the cases. But Maryland’s law, according to longtime structured settlement expert Craig Ulman, is “substantially weaker” than in most states. For example, it doesn’t require that settlement recipients appear in court, as Illinois’ law does. It also doesn’t make purchasing companies file their petitions in the seller’s county of residence, as in New York, Oregon and other states.

Critics say such conditions can give rise to something called “forum shopping,” in which purchasing companies seek out less-scrutinous judges. Those firms “find the squeaky wheels, where things aren’t as enforced as much … and the judge simply looks at the affidavit,” said John Darer, who operates a blog monitoring the industry.
Petitions involving Maryland’s lead victims cluster in Montgomery, Howard and Prince George’s counties — anywhere but Baltimore City, the jurisdiction where most of those lead victims live. Access Funding says it has overwhelmingly filed in Prince George’s County because that’s where their attorney’s office is located.

Maryland’s court system also makes it easy to find the right clientele. Its case search puts lead-paint lawsuits into their own category, meaning a few keystrokes can call forth thousands of names. This unique confluence of factors constitutes the “perfect storm of bad stuff,” said Earl Nesbitt, executive director of the National Association of Settlement Purchasers.

How “bad” is the “stuff”? Very. Read the whole thing, but here’s a few lowlights. Meet Charles Smith, a lawyer who provides “legal, tax and financial” advice to sellers of structured settlements. He’s supposed to be “independent.” Not so much.

Charles E. Smith is another lawyer who does this work. A review of 52 Access Funding deals revealed that Smith worked as the independent adviser on every one. . Smith entered the same letter in every case stating the lead victim understood the deal’s “legal, tax and financial implications” and that he was not “affiliated” with ­Access Funding. Borkowski said his company has no contractual or business relationship with Smith, declining to answer additional questions.
Smith said such transactions “represent an extremely small percentage of my practice. I have no business partnerships with any company in the structured settlement purchasing industry. . . . In all instances, I am directly contacted by the [settlement recipient.] . . . I’m not exactly sure how [they] come to me. . . . My independence is in no way compromised or at risk.”
Critics condemned the practice of an independent adviser working deal after deal for the same company. “It’s a total conflict of interest,” lawyer Kerpelman said. “He’s doing business for them and with them all the time. Imagine if he ever said, ‘No, she can’t read. She can’t understand what she’s signing.’ ” That partnership, he said, would evaporate.

52 cases with the same company, identical affidavits, and he claims not to know where the clients come from? Somebody subpoena the documents – my guess is it comes out of the pittance that the sellers get. Not out of their own pocket. Another bloodsucker.

A final point: take one guess whose family sold their lead paint income streams to Access Funding several years ago? That would be the late Freddie Gray. Predatory practices come full circle. 
Like I said, go read the whole thing. 

This system is an outrage. These companies should be shut down and prosecuted. Their investors should be made to pay back every penny. And the Maryland legislature and court system must reform this process. An outright ban on the sale of structured settlements for anything less than a certain percentage of the present value of the future payments should be created. Failure to act is complicity in what is now a systematic theft of money from victims of lead paint exposure and other significant harms. We’re allowing victims to be victimized again. It’s repellent.

This Is Big

Right now, in cities and counties all across the country, there are vagrancy laws against sleeping outside, camping in public spaces, and other similar laws that are used indiscriminately against the homeless. The number of homeless people has shot up since 2008, and there are nowhere near enough shelters to accommodate them all.

When a homeless person – or anyone – gets charged with breaking one of these laws, the impact is enormous, it cascades consequences upon consequences, and has a devastating effect on the future prospects of the homeless to get jobs and housing.

In Montgomery County, criminalizing the homeless has been a growth industry for years. Disorderly conduct, trespassing, you name it, they charge it, in hundreds of citations per week, tens of thousands in a year. Or s county that prides itself on its progressive ways and welcoming attitude, our treatment of the homeless stands in stark contrast to our self-image.

This obscure case in Idaho may change all that. The federal government has filed a “statement of interest” in a case I federal court in Idaho. In that case, homeless people in Boise are suing the city, claiming that enforcement of that city’s vagrancy laws is unconstitutional as being in violation of the Eighth Amendment’s prohibition of cruel and unusual punishment.

The statement of interest is a remarkable read, setting forth the government’s argument on behalf of the plaintiffs in the case on the constitutional issue. Go read it all but here’s the gist of it as set forth in the Post article.

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.

I’d add another paragraph to highlight as well.

Issuing citations for public sleeping forces individuals into the criminal justice system and creates additional obstacles to overcoming homelessness. Criminal records can create barriers to employment and participation in permanent, supportive housing programs. Convictions under these municipal ordinances can also lead to lengthy jail sentences based on the ordinance violation itself, or the inability to pay fines and fees associated with the ordinance violation. Incarceration, in turn, has a profound effect on these individuals’ lives. Finally, pursuing charges against individuals for sleeping in public imposes further burdens on scarce public defender, judicial, and carceral resources. Thus, criminalizing homelessness is both unconstitutional and misguided public policy, leading to worse outcomes for people who are homeless and for their communities.

All true. If the federal government’s position is adopted, enforcement of vagrancy laws against the homeless – at least those who have no place else to go – will be outlawed. If states, counties and cities – like Montgomery County – want to do something about homelessness, we should take all the money we now spend destructively arresting, incarcerating, prosecuting and sentencing people simply for the crime of being homeless, and use it affirmatively and proactively to provide more and better housing options for the growing numbers of people who are homeless in our community.

Police And Guns

In the United States, heavily armed police shoot two people dead every day. In Britain, the vast majority of police officers patrol armed only with a baton and pepper spray, and there have been a total of two fatal police shootings in three years. Is there a lesson to be learned here? The Washington Post this week says yes.

As the United States reckons with that toll — and with the constant drip of videos showing the questionable use of force by officers — lightly armed Britain might seem an unorthodox place to look for solutions. But experts say the way British bobbies are trained, commanded and vigorously scrutinized may offer U.S. police forces a useful blueprint for bringing down the rate of deadly violence and defusing some of the burning tension felt in cities from coast to coast.

We have more guns here – shocker – but there are lessons to be learned.

Few here would argue that the United States should adopt Britain’s nearly firearms-free approach. But as increasingly horrified British officers and commanders have watched videos of American police officers firing on civilians, they say they hope that some of their strategies and practices can be translated across the Atlantic.

Sir Peter Fahy, chief of the Greater Manchester Police, commands 6,700 officers — just 209 of whom are armed. Those authorized to carry guns, he said, face extremely tight protocols governing when they can be deployed and under what circumstances they can fire. Shooting at moving vehicles, at people brandishing knives and at suspects fleeing a scene are all strictly forbidden except under extreme circumstances.

“It’s very controlled,” he said. “There’s a huge emphasis on human rights, a huge emphasis on proportionality, a huge emphasis on considering every other option.”

All officers, he said, are taught to back away from any situation that might otherwise escalate and to not feel that they have to “win” every confrontation.

“I constantly remind our officers that their best weapon is their mouth,” he said. “Your first consideration is, ‘Can you talk this through? Can you buy yourself time?’ ”

That mantra helps explain why, across England and Wales over the past decade, there has been an average of only five incidents a year in which police have opened fire.

So, too, does the stringent screening process. Officers must serve for years before they can apply to carry a gun, and the selection of those deemed worthy is intensely competitive.

Imagine that. Human rights? Who would have thought? De-escalation? Gibberish. I spent two decades among cops virtually every day. This is not how we train police officers to think. Here, it’s “get them before they get you. It’s a jungle out there.”

And five shootings per year? My guess is that’s a good hour’s worth of lead expended in the United States.

More than any particular law change, be it body cameras or other accountability measures, we have to change the culture of police work, to put more of an effort into the kinds of thinking that are routine in England. Talk first. Buy time. De-escalate. This is not a war, it’s your community. As we’ve seen even this week in McKinney, the racial problems run deep and won’t go away immediately or easily. But we have to try – the over 700 deaths at the hands of police waiting to happen this year, and the next, and the next, demand better answers. The sooner we start, the sooner the blood will stop flowing in our streets.

Peak GOP Nonsense

This might well be the dumbest dumb in the dumb history of all dumb GOP dumb. Spend six years trying to kill a landmark piece of legislation, fail repeatedly and then resort to the courts with a stupid and ridiculous argument. Get the Supreme Court’s five conservative votes to hear the case despite the stupidity of the argument and now that a decision is near – blame Obama for the problem.

Republican politicians treat their audiences like rubes and suckers. This is a prime example. I’d call it comedy gold, except for the fact that people will assuredly die if the Supreme Court strikes down the federal subsidies and the ACA is fatally damaged as a result. That’s not funny. Just dumb.

  

Access To Counsel

The Post has a thoroughly depressing story today about the increasing numbers of Americans who walk into civil courtrooms without a lawyer. Not surprisingly, they usually lose, often with devastating consequences akin to a criminal conviction. 

In well over two thirds of critical cases in America’s civil courts, people appear without a lawyer, even though the stakes are often just as high as in criminal proceedings. Many people suffer crushing losses in court not because they’ve done something wrong, but simply because they don’t have legal help.

Legal aid programs are unable to meet anywhere near the demand for their services. As a result, poor and desperate people are left to navigate the often byzantine court system alone, at a time when the stakes are at their highest. 

In 70 to 98 percent of cases in America’s civil courts today, one or both parties are not represented by a lawyer. One report found that civil legal aid programs must turn away almost two-thirds of the people who seek their assistance in critical civil cases, despite research showing that in many such cases, access to legal help makes all the difference. In evictions, for example, two-thirds of tenants who go to court without a lawyer lose their homes, while two-thirds of those represented by an attorney are able to keep them.

The current upheaval in legal job markets and skyrocketing costs for law school aren’t helping, either. Poor and middle class families can’t afford the $200-300 per hour that even “cheaper” lawyers charge, but recent law graduates with extensive debt can’t afford to work for free, either. Loan forgiveness and fellowship programs are at best a stopgap measure, leaving the long term problems of access to justice unresolved for too many Americans. 

This is not a matter of the government subsidizing the education of graduates headed for lucrative jobs in corporate law. It’s about making it possible for graduates to do the much-needed legal work that comes without much financial reward, like preventing evictions, defending battered spouses and helping veterans secure the benefits they’ve earned. Studies show that these vital public services not only help individuals and families, but save taxpayers money by reducing the costs that spread beyond a family in crisis to the local, state and federal government. For example, providing a lawyer to prevent an unlawful eviction and keep a family in their home costs much less than placing them in a homeless shelter.

The article discusses other potential changes before concluding:

As we confront these challenges, there is also a need for a culture shift within our law schools and the legal profession at large. We must recognize that providing expert legal help is not just charitable. It is rewarding work that should be as coveted as the associate positions at large corporate law firms. And it’s essential work to meet our collective, professional obligation as guardians of our nation’s commitment to justice. It’s hard to see how a legal system that meets only the needs of the wealthy, while leaving most everyone else by the wayside, is a vital resource for society.

We must do a better job of ensuring our country’s promise of “justice for all.” The future of the legal profession — and millions of Americans — depends on it.

I did a lot of this work over the more than 20 years I actively practiced law. Pro bono, reduced fees, pay what you can, set a fee knowing damn well that I’d never see most if not all of it and that the work would be far in excess of the payment even if I did get it. I considered it being a good person AND a good businessman. I wasn’t all that great at the latter part of the job but I still did fine.

But I could do that because I wasn’t under a crushing law school debt load. Tuition my last year of law school was $14,000. Within four years of graduation I had paid off my loans and could go into solo practice the next year with the freedom to take any case I wanted right from the start.

Young lawyers today simply don’t have that freedom. They often have $150,000 to $200,000 or more in loans – by comparison, my first mortgage to buy a townhouse in 1995 was $132,000 – and if they’re forced – usually too soon – into solo practice, they’re necessarily looking for paying clients, as opposed to those who need help but can’t afford it. 

We need government programs that can match the overwhelming need for legal services to the skills and experience and passion of young lawyers willing to help but financially unable to do so to the necessary degree. The alternative is a justice system that is anything but just for the vast majority of Americans.