Everyday Erinyes #105

 Posted by at 8:15 am  Politics
Dec 162017
 

Experts in autocracies have pointed out that it is, unfortunately, easy to slip into normalizing the tyrant, hence it is important to hang on to outrage.  These incidents which seem to call for the efforts of the Greek Furies (Erinyes) to come and deal with them will, I hope, help with that.  Even though there are many more which I can’t include.  As a reminder, though no one really knows how many there were supposed to be, the three names we have are Alecto, Megaera, and Tisiphone. These roughly translate as “unceasing,” “grudging,” and “vengeful destruction.”

Heaven knows there are petty little things I could be including here, like the 11-year-old black girl who was arrested and handcuffed by police who had a warrant for a 40-year-old white woman (yes, you read that right, and I am not making it up).  Or like the woman in Walnut Creek who raised a stink in Starbucks because two other patrons were “speaking Oriental” (did you know that was a language?  I didn’t.  Ummmm… I still don’t.)  But, instead, I want to bring up good old Core Civic.

Core Civic, you may remember, is the new (in 2016) name for what used to be Corrections Corporation of America.  In other words, private prisons.  well, private prison corporations have been seeing some handwriting on the wall for a while.  The push to legalize marijuana is gaining steam, and the more states it is legal in, the more the prison populations in those states will go down.  The other big private prison provider, GEO Group, has been expanding to non-prison services such as ankle monitors, halfway houses, substance abuse treatment, and the like.

But several years ago, both competitors changed their status on paper so that both are now real estate companies – technically, Real Estate Investment Trusts (REITs).  This has allowed them

to score a massive tax break. In 2015 alone, the corporations used their REIT status and other avenues to avoid a combined $113 million in federal income taxes.

But Core Civic is taking their REIT status beyond paper and into the real world.

In September, the publicly traded corporation that owns and operates prisons, jails, immigration detention centers, and halfway houses bought properties in North Carolina and Georgia that are leased to the Internal Revenue Service (IRS) and Social Security Administration (SSA).

In their words, the deals are part of a plan to make “additional investment via acquisition in mission-critical government real estate asset classes outside of our traditional correctional detention residential reentry facilities.”

In other words, CoreCivic wants to be a landlord of all types of government buildings.

And

They’ve almost got Kansas convinced to let them build and maintain a new prison that they can lease to the public, despite it being the more expensive way to go(emphasis mine)

I see this as a move from completely despicable theft of public funds into plain old ordinary graft.  Some might say that is less malignant – but every public dollar that goes to them is one less to be spent on actual governing, and actually providing what our communities really need.  One more dollar that goes into killing people instead of keeping people alive.

Alecto, it would seem to me to make sense to start in Kansas, if indeed it can be done cheaper without them.  A state reduced to selling sex toys to supplement the budget doesn’t need to be throwing money around.  On the other hand, a state that dumb may never listen.  You know your job and do it well, I won’t try to micromanage.

The New Mexico Political Report frequently concerns itself with matters of New Mexico polirics.  But, when it takes on national issues, it takes them on well.  A case in point is an article this week regarding mandatory federal sentencing, derived from work by ProPublica.

During Ronald Reagan’s first term (I’ll bet you all see red lights already),

Congress identified what it said was a grave threat to the American promise of equal justice for all: Federal judges were giving wildly different punishments to defendants who had committed the same crimes.

In 1984, Congress created the U.S. Sentencing Commission, with bipartisan support we could only dream of today.  The commission set firm sentencing rules (called “guidelines”) for every Federal offense.

In 1989, the case Mistretta v U.S. came before the Supreme Court.  Mistretta and the government both petitioned the Supreme Court for certiorari before judgment, and the Court took the case.  The issue was: Was Congress’s creation of a United States Sentencing Commission (with the power to establish binding sentencing “guidelines”) constitutional?

This was the Rehnquist court.  Thurgood Marshall was still alive,  Sandra Day O’Connor was on this Court.  Justice (Harry) Blackmun gave the opinion for the majority.

The Court held that, as society increases in complexity, Congress must delegate authority “under broad general directives.” The broad delegation of power to the Commission was undoubtedly “sufficiently specific and detailed to meet constitutional requirements.”

The only dissenter was Antonin Scalia.

If Scalia was right, as new evidence suggests he MAY have been, it will of course have been for the wrong reasons.

Mistretta was a momentous decision, but it’s now clear the high court relied on evidence that was flimsy and even flat-out wrong.

The Court used one study based on two reports from the early seventies.  The two reports appear to have been riddled with errors.  “Average” sentences cited for a district in which there had only been one case of the kind supposedly being “averaged.”  Other averages computed with mathematical errors.

The existence of the commission led to sentencing increases caused by fewer defendants being granted probaton.  And the creation of sentencing “enhancements” (think the opposite of “mitigation”) also increased sentences.

In the ten years since 1984, when the Commission was created, and 1995, the Federal prison population went from just over 40,000 to over 100,000 – an increase of 150%.

It also hasn’t helped that once Congress had created the Commission, and the Court had decided it was Constitutional, Congress failed to leave it alone to do its job.  It was Congress which made the punishments for crack cocaine convictions a hundred times more severe than those for powder cocaine.  The Commission more than once tried without success to get Congress to back off.

Megaera and Tisiphone, I fear we have gotten ourselves into an imposssible position.  We desperately need sentencing reform – we need it at all levels of our multiple judicial systems.  But I also admit the thought of giving any more power to judges who are now being appointed scares the bejeebus out of me.  I won’t even try to tell you what to do.

The Furies and I will be back.

Cross posted to Care2 HERE.

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Everyday Erinyes #65

 Posted by at 8:05 am  Politics
Mar 112017
 

Experts in autocracies have pointed out that it is, unfortunately, easy to slip into normalizing the tyrant, hence it is important to hang on to outrage.  These incidents which seem to call for the efforts of the Greek Furies (Erinyes) to come and deal with them will, I hope, help with that.  Even though there are always many more which I can't include.  As a reminder, though no one really knows how many there were supposed to be, the three names we have are Alecto, Megaera, and Tisiphone. These roughly translate as "unceasing," "grudging," and "vengeful destruction."

I am going to simplify things for the Furies this week, because, expected to come up next week, there will begin the confirmation hearings for the position in the Trump administration which has the greatest potential to do the longest lasting harm to the American people.  More harm, and longer lasting than Scott Pruitt?  I hear someone ask.  Yes.  I am talking about Neil Gorsuch, the Resident's nominee to the Supreme Court.

Paul Gordon, for People for the American Way, has prepared a report on Judge Gorsuch.  It's called "Real People, Real Lives: The Harm Caused by Judge Gorsuch."  Now, I am sure that even a President who is himself a Constitutional lawyer will ask for recommendations when there is a vacancy on the Supreme Court to fill.  That isn't a problem.  This is a problem:

When Donald Trump was running for president, he outsourced his future selection of potential Supreme Court nominees to two right wing organizations, the Federalist Society and the Heritage Foundation. They provided him a list of 21 people who were acceptable to them, Trump promised to select a nominee from the list they gave him, and they and their right wing colleagues agreed to support him. Neil Gorsuch was nominated as the product of this political arrangement.

Mr. Gordon, after this introduction, sets forth twelve cases actually decided by Judge Gorsuch during his tenure as a judge, and then ends with a conclusion.  Here is his Table of Contents:

 1 No Understanding of Sexual Harassment in the Real World
 2 Medical Device Maker Pushes Misuse of Product
 3 Gorsuch and Children with Autism
 4 No Leave Extension for Leukemia Patient
 5 Excessive Force
 6 Worker Dies Due to Inadequate Training
 7 Die or Be Fired
 8 Defer to the Governor, Facts Notwithstanding
 9 No Understanding of Another’s Perspective
10 Sex Discrimination
11 The Most Vulnerable
12 The Sixth Amendment: Undermining the Right to Counsel
13 Conclusion

That makes it sound like the report is practically a book.  It isn't really.  If you printed the whole thing out as a PDF, it would be 26 pages, or roughly 2 pages per case discussed.  In 16 point type (you're used to seeing 12 point), with the chapter headings in 28 point, with a lot of space between them and the text before and after.  So it's practically a walk in the park to read through (except for the ourageous results, which are hard on the blood pressure.)  But I'll provide here a little information about a few of the cases whose nature is not obvious from the title.

In Chapter 5, for instance, titled "Excessive Force," the force in question was a taser aimed from about 10 feet away at the victim, who died of it.  His bereaved parents brought suit against the City.  Judge Gorsuch dismissed the case.  made sure it did not even get to trial.

In Chapter 7, "Die or Be Fired," a trucker was hauling cargo in subzero weather, and his brakes froze.  He stopped and reported the problem to the company, then waited for a repair person.  Who did not show (may never have shown – it's not exactly clear who did come to do the repair.)  The heater in his cab was not working, and, remember, this is subzero weather.  After a couple of hours, he was numb and his speech was slurred.  He called the company twice more, the second time to notify the company he was going to unhitch the cab and drive for help and return (already an iffy plan with the shape he was in.) The company told him not to leave the cargo (in the trailer with the frozen brakes.  Right.) 

He drove for help anyway, and returned within about FIFTEEN MINUTES with assistance.  A week later, he was fired.  For abandoning his cargo.

Fortunately this case did not end tragically, since the Labor Department found for him, and it was upheld upon Administrative Review in the Tenth Circuit.  With Judge Gorsuch dissenting.  The law, he said, protects a driver who refuses to drive an unsafe vehicle.  It doesn't protect a driver who drives in a way he was instructed not to.
 
In Chapter 11, "The Most Vulnerable" applies to children with disabilities (and by extension to their guardians.)  The case hinged on the IDEA (Individuals with Disabilities Education Act) requirement that before going to court, a claimant must have exhausted all IDEA administrative remedies.  Simply put (and probably from a legal standpoint inaccurately), Judge Gorsuch's position was that if you get a school district to the point of agreeeing that your child has a disability (but won't do anything about it), you will never be able to exhaust administrative remedies, because you will have "settled."  Gordon quotes another judge who explains how – um – against Congressional intent that is.

Dear Furies, I am not going to ask you to go after Judge Gorsuch.  He ia a lost cause.  No, instead I would like for Alecto to concentrate on all of the Democratic Senators and help them stiffen their backbones to filibuster and do whatever they can to prevent this confirmation.  You can (and probably should) share this report with them and encourage them to ask hard questions in the hearings based on the stupidest of the decisions.  Megaera and Tisiphone, I'd like for you to concentrate on the Republican Senators.  If we can keep the Democratic Senators firm (I know, that's a big if – maybe Tisiphone should pick up Manchin), it will only take two Republicans to deny him confirmation.

Gorsuch is only 49.  That is quite young for a Supreme Court Justice.  He could be there for as much as forty years.  I find that unthinkable.  Ladies, best of luck.

The Furies and I will be back.

Cross posted to Care2 at http://www.care2.com/news/member/101612212/4041623

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