Fines and Fees Are Inherently Unjust

Fining people equally hurts some people far more than others, undermining the justifications of punishment…

Being poor in the United States generally involves having a portion of your limited funds slowly siphoned away through a multitude of surcharges and processing fees. It’s expensive to be without money; it means you’ve got to pay for every medical visit, pay to cash your checks, and frankly, pay to pay your overwhelming debts. It means that a good chunk of your wages will end up in the hands of the payday lender and the landlord. (It’s a perverse fact of economic life that for the same property, it often costs less to pay a mortgage and get a house at the end than to pay rent and end up with nothing. If I am wealthy, I get to pay $750 a month to own my home while my poorer neighbor pays $1,500 a month to own nothing.) It’s almost a law of being poor: the moment you get a bit of money, some kind of unexpected charge or expense will come up to take it away from you. Being poor often feels like being covered in tiny leeches, each draining a dollar here and a dollar there until you are left weak, exhausted, and broke.

One of the most insidious fine regimes comes from the government itself in the form of fines in criminal court, where monetary penalties are frequently used as punishment for common misdemeanors and ordinance violations. Courts have been criticized for increasingly imposing fines indiscriminately, in ways that turn judges into debt collectors and jails into debtors’ prisons. The Department of Justice found that fines and fees in certain courts were exacted in such a way as to force “individuals to confront escalating debt; face repeated, unnecessary incarceration for nonpayment despite posing no danger to the community; lose their jobs; and become trapped in cycles of poverty that can be nearly impossible to escape.” A new report from PolicyLink confirms that “Wide swaths of low-income communities’ resources are being stripped away due to their inability to overcome the daunting financial burdens placed on them by state and local governments. There are countless stories of people being threatened with jail time for failing to pay fines for “offenses” like un-mowed lawns or cracked driveways.

Critics have targeted these fines because of the consequences they are having on poor communities. But it’s also important to note something further. The imposition of flat-rate fines and fees does not just have deleterious social consequences, but also fundamentally undermines the legitimacy of the criminal legal system. It cannot be justified – even in theory.

I work as a criminal defense attorney, and I have defended both rich and poor clients (mostly poor ones). Many of my clients have been given sentences involving the imposition of fines. For everyone, regardless of wealth, if a fine means less (or no) jail time, it’s almost always a better penalty. But, and this should be obvious, fines don’t mean the same thing to different people. For my poor clients, a fine means actual hardship. In extreme cases, it can mean a kind of indenture, as the reports have pointed out. If you make $1,000 a month, and are trying to pay rent and support yourself, a $500 fine means a lot. It means many months of indebtedness as you slowly work off your debt to the court. It might mean not buying clothes for your child, or forgoing necessary medical treatment.

Of course, the situation changes if you’re wealthy, or even middle-class. You write the check, you leave the court, the case is over. For my wealthy clients, a fine isn’t just the best outcome, it’s a fantastic outcome, because it means the crime which you are alleged to have committed has led to no actual consequences that affect you in a substantive way. You haven’t had to make any sacrifices –  your life will look precisely the same in the months after the fine was imposed as it did in the months before. Wealthy defendants want to know: “What can I pay to make this go away?” And sometimes paying to make it go away is exactly what they can do as courts will often accept pre-trial fines in exchange for dismissal.

As I said, it’s not news that it’s harder to pay a fine if you’re poor. But the implications of this are rarely worked all the way through. For if it’s true that the punishment prescribed by law hurts one class of defendants far more than it hurts another class of defendants, then the underlying justification for having the punishment in the first place is not actually being served, and the basic principle of equality under the law is being undermined.

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If fines are imposed at flat rates, poor people are being punished while rich people are not. If it’s true that wealthy defendants couldn’t care less about fines (and a millionaire with a $500 fine really couldn’t care less), then they’re not actually being deprived of anything in consequence of their violation of law. Punishment is supposed to serve the goals of retribution, deterrence, or rehabilitation. Leaving aside for the moment whether these are actually worthy goals, or whether criminal courts actually care about these goals, flat-rate fines don’t serve any of them when it comes to wealthy defendants. There’s no deterrence or rehabilitation, because if you can pay an insignificant fee to commit a crime, there’s no reason not to do it again. It’s wildly unclear how a negligibly consequential fine would deter a wealthy frat boy from continuing to urinate in public, whereas a person trying to escape homelessness might become very careful not to rack up any more fines.

Nor does the retribution imposed have a rational relationship to the significance of the crime. If the point of retribution is to make someone suffer a harm in proportion to the suffering they themselves have imposed (a dubious idea to begin with), flat-rate fines make no sense, because some people are being sentenced to far greater suffering than others. This means that it is unclear what we believe the actual correct retributive amount is supposed to be. It’s as if we punish in accordance with the philosophy of “an eye for an eye,” but we live in a society where some people start with one eye and some people start with a twenty eyes. Taking “an eye for an eye” means something quite different when imposed on a one-eyed man than it does with a twenty-eyed man. The one-eyed man has been punished with blindness while the twenty-eyed man can shrug and simply have one of the lenses removed from his spectacles.

This is important for how we view the law. If courts aren’t calibrating fees based on people’s actual wealth, then massively differential punishments are being imposed. Some people receive indenture while others receive no punishment at all, even given the same offense at the same level of culpability. If fines are supposed to have anything to do with making a person experience consequences for their crime, whether retributive consequences or rehabilitative consequences, then punishments are failing their stated purpose and being applied grossly unequally.

It may be objected that fines do not constitute an unequal application of the law, because they are applied equally to all. But the point here is that application of a law equally in each case does not mean “equal application of law to all” in any meaningful sense. In other contexts, this is perfectly clear. A law forbidding anyone from wearing a yarmulke and reading the Torah does not constitute the “equal application of law to all.” It clearly discriminates against Jews, even though Christians, Muslims, Hindus, and the non-religious are equally prohibited from wearing yarmulkes. (The absurdity of “equal application” meaning “legal equality” was well captured by Anatole France, who wrote that “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges.”)

It is inevitable that laws will always affect people differently, because people will always be different. But if some people are given something that constitutes far more of a burdensome punishment for them than it is for others, the actual purposes of the law aren’t being served. Separate from the equality arguments, for a large class of people punishment simply isn’t even serving its intended function.

Of course, you could easily take a step toward this, by fining people in accordance with a percentage of their income rather than at a flat rate (or redistributing all wealth). If a fine is, say, 2% of one’s annual income, then a person with a $20,000 income would face a $400 fine whereas a person with a $200,000 income would face a $4,000 fine. That’s still grossly unfair of course, because $400 means far more to the poorer person than $4,000 does to the richer person. You wouldn’t have a fair system of fines until you figure out how to make the rich experience the same kinds of effects that fines impose on the poor. The fact that even massively increasing fines on the rich wouldn’t bring anything close to equal consequences should show how totally irrational our present system is.

But rather than having courts appropriate larger quantities of rich people’s wealth (though their wealth obviously does need appropriating), we could also simply reduce the harm being inflicted on the poor, through reforming local fines-and-fees regimes. It’s clear that in many cases, fines don’t have anything to do with actual punishment; they’re revenue-raising mechanisms, a legalized shakedown operation, as the Justice Department’s report on Ferguson made clear. Courts aren’t interested in actually calculating the deterrence effects of certain financial penalties. They want to fund their operations, and poor people’s paychecks are a convenient piggy bank.

We know that fines and fees have, in many jurisdictions, created pernicious debt traps for the poor, arising from trivial offenses. But it’s when we examine the comparative impact on wealthy defendants that this system is exposed as being irrational as well as cruel. It doesn’t just ensnare the less fortunate in a never-ending Kafkaesque bureaucratic nightmare. It also fundamentally delegitimizes the entire legal system, by severing the relationship between punishments and their purpose. It makes a joke out of the ideas of both the punishment fitting the crime and equality under the law, two bedrock principles necessary for  “law” to command any respect at all. So long as flat-rate fines are disproportionately impacting the poor, there is no reason to believe that criminal courts can ever be places of justice.

It Is Morally Unconscionable Not To Give Chelsea Manning Clemency

Barack Obama must make the right choice…

The ability to give clemency is one of the most unrestricted powers given to the President of the United States. It isn’t subject to review by the courts; the President can pardon or commute the sentence of anyone convicted of a federal crime. The decision to offer or withhold clemency is entirely in the President’s hands.

It would therefore be a morally unconscionable act for Barack Obama not to commute the sentence of Chelsea Manning. Given the President’s total responsibility for the decision, his complete authority over whether or not to grant mercy, failure to grant clemency for Manning would be a decision that would place a lasting moral stain on Obama’s presidency. In the next four days, Obama has the power to save a young woman’s life. Declining to exercise that power would be an act of shocking callousness and cowardice.

To the extent that there are heroes in this world, Chelsea Manning is one. She sacrificed her own freedom and reputation in order to bring crucial information to light. Thanks to her, the public gained a necessary understanding of the darkest sides of the Iraq War. She exposed rampant  detainee abuse and torture and demonstrated the complicity of the United States military in such acts. She exposed civilian deaths in a now infamous video in which a U.S. Apache helicopter fires on a group of unarmed people in Baghdad, killing two Reuters photographers, among others. There is a long list of important facts that the public now knows thanks to her. Many pieces of the now common narrative around the failings of the Iraq War would not be there but for Manning.

We all depend on the courage of leakers and whistleblowers in order to find out more about how the world really is. Without people like Manning, who are willing to face serious personal consequences in order to do what they think is right, unaccountable governments would become steadily more so. For what it’s worth, Manning even displays all of the values that Obama voiced his support for in promising a transparent and accountable government. There is a reason why other great whistleblowers like Daniel Ellsberg have come to her defense and objected to her treatment.

When brought to trial for her actions Manning took full responsibility for her actions and their consequences. She hoped that the necessity of the public disclosure would earn some leniency from a cruel state.  She pled guilty. But she was granted a shockingly harsh sentence of 35 years. The longest sentence for any leak to media in US history. Longer than anyone responsible for torturing Iraqi detainees ever received. She has already served five years of her sentence – and they have not been an easy five. The U.S. Army has treated Manning with an extraordinary level of brutality. She was held in long-term solitary confinement for 11 months, a treatment classified by the United Nations as a form of torture. Manning has also suffered unique difficulties for being a transgender woman in a men’s-only prison. As she wrote in her petition to Obama: “I need help… I am living through a cycle of anxiety, anger, hopelessness, loss, and depression. I cannot focus. I cannot sleep. I attempted to take my own life.”

What has been done to Manning is appalling. When she attempted suicide, instead of giving her treatment, the Army punished her by giving her more solitary confinement; i.e. treating severe psychological distress with more torture (a regularly used ‘remedy’ in this country’s prison system). Unsurprisingly, Manning attempted suicide again. She has clearly been suffering deeply, and we can only speculate on the additional troubles she will face under the incoming Trump Administration. (This is not to mention what Manning went through during her time in service.)

Chelsea Manning is a human being, who is being tortured and is hovering near the brink of suicide. One person has the power to step in and help. He must.

Of course, Manning is only one individual among many whom Barack Obama has a moral duty to exercise his power to help. The system of mass incarceration will outlast his presidency, and while Obama has granted some pardons and commutations, our prison system remains an indefensible fixture of American life. Focus on Manning should not detract from the fight to free all of those caged by the state – no one should be left behind. Nevertheless, Manning provides a clear-cut moral case. There is no excuse to be made – even by the government’s warped standards.

Barack Obama has disappointed progressives for many reasons. But in each instance, there has been a common reply from his defenders: Obama’s hands were tied by political constraints. Yet here is an instance in which nothing binds Obama. He has complete discretion. What he chooses to do will tell us a lot about what kind of person he truly is. Granting Manning clemency will not absolve Obama of the millions of other harms that he has created, nor even wipe clean the slate of other whistleblowers his administration has prosecuted, but not doing so would demonstrate the basest unwillingness to do good in the face of….literally no obstacle whatsoever.

There is no excuse for a refusal to act. Obama must grant Manning clemency.

Banning Smoking in Public Housing is Just Another Experiment on the Poor

A seemingly unobjectionable public health measure increases surveillance and criminalization…

It is understandable, given everything else going on, that there has not been much controversy around the Department of Housing and Urban Development’s (HUD) new plan to ban smoking in all public housing. And after all, why should there be controversy? Liberals like the smoking ban because it’s a public health initiative, and keeps children from getting asthma. Conservatives couldn’t care less about some new public housing regulation. Banning smoking in housing projects is a plan everyone can be happy with.

But everyone shouldn’t be happy with it. Because this policy that seems totally unobjectionable is actually somewhat sinister. And the fact that the smoking ban appears so downright reasonable shows just how little the experiences of public housing residents enter into public debate.

HUD’s new ban covers “lit tobacco products where the tobacco leaves are ignited, such as cigarettes, cigars and pipes” and would restrict anyone from smoking in a public housing unit, common space, hallway, or within 25 feet of a public housing development. It’s strict: public housing tenants will no longer be able to smoke in or near their homes, and a lot of outdoor public areas already have restrictions on smoking.

The arguments for a full smoking ban in public housing seem persuasive. The American Lung Association has pointed out that secondhand smoke can pass through walls and ventilation, making the argument that a person’s right to be free of smoke is more important than another person’s right to ingest smoke. Banning cigarettes in housing projects, it is argued, makes residents healthier and better off.

But like many well-intentioned liberal regulations, in practice the smoking ban is not a magic wand that makes cigarettes disappear instantaneously. The regulation only means something in its enforcement, which means that it empowers public housing authorities to punish violators. As Current Affairs has argued before (about burkini bans), many laws that seem perfectly reasonable in their purposes become insidious when we think about how they will actually be imposed upon people (not that burkini bans are reasonable). Making a new rule means being willing to inflict some sort of punishment on people for violating that rule. And the process of inflicting punishment is often ugly.

It is not yet clear how the enforcement regime for the smoking ban will look, but homeless advocates expressed concern during the rule-making process that smokers could end up evicted for violating the ban. HUD Secretary Julián Castro has attempted to give reassurance on this, stating that “We don’t see this as a policy that is meant to end in a whole lot of evictions.” But Castro’s statement is worrying in its wording. He doesn’t “see” it as being “meant to” end in a “whole lot of” evictions. Not, “We will not be evicting people for smoking.” But we don’t see ourselves as intending to evict many people.

Evictions devastate people’s lives, and are one of the great cruel stressors in the lives of poor people. And for people who have an addiction to tobacco (one that is frequently a response to… the stresses of being poor), hanging the threat of homelessness above their heads is the least sympathetic possible response. It means that people who are already suffering with medical issues resulting from tobacco use now have to worry about whether their habit will lead to being cast out into the street.

Of course, there are other, less extreme punishments that public housing authorities can inflict. They can, for example, issue fines and citations. But fining poor people (again, for a habit that is incredibly difficult to control) means extracting pieces of the little wealth they have, without necessarily actually causing them to stop smoking. It also often leads to even more serious consequences down the line, such as ever increasing fees or possibly jail time. The result (unless one is willing to start instituting evictions) may be that there is still plenty of smoke in public housing projects, but also poor people regularly paying new fines.

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But possible evictions are not the only issue. Even if no evictions occur (an unlikely result) the policy still increases the intense surveillance of the poor. Public housing projects are already miniature surveillance states. Partially as a result of socially-minded efforts by Democratic presidents (such as Bill Clinton’s crackdown on resident drug use), public housing residents have their behavior monitored in ways that citizens of private dwellings would never accept. Because the government is offering people free or reduced-cost housing, it is able to extract extraordinary concessions from them in terms of their liberty. Housing authorities regulate and police people in highly invasive ways. The extent of regulation varies by jurisdiction, but has the common feature of making poor tenants constantly “walk on eggshells” if they want to avoid having their homes taken away. (For example in Massachusetts, a 93 year old client of mine once faced eviction for spilling juice on another tenant.) Yet it’s hard for people experiencing hardship to turn down the bargain. This is the sort of logic that pushes criminal defendants to be excited about GPS monitoring, because at least it’s not jail. It’s the sort of logic that tells food stamp recipients to be happy about limits on the type of food they can buy, because at least they can get food; or employees to smile as they pee into a cup, because at least they have a job.

This is something that liberal technocrats, such as Obama administration HUD officials, do not realize. They look entirely at the public health question, ignoring the fact that they are only able to enact their dream public health initiatives on people because those people are poor. They would like to ban smoking in all housing. But they only have control over public housing. It therefore seems to make sense to ban smoking there. But this treats poor people as a social experiment, who can be “nudged” and cajoled in ways that ordinary citizens cannot. It is an open acknowledgment that public housing is not “real” housing, insofar as it does not come with the kind of control over one’s own space that one would have if one owned a home.

HUD has been strangely indifferent to this aspect of the smoking ban, even though they clearly know it exists. A Q&A on the Department website shows that the agency is highly sensitive to concerns that the ban will disproportionately affect disabled people (who cannot get outside to smoke) or mentally ill people (who are likely to have a harder time complying with the rules). Yet HUD’s responses to the questions indicate that, while they know these inequities exist, they don’t intend to do anything about them:

Q: What about residents that smoke and have difficulty getting outside, or have mobility impairments–can they be allowed to still smoke in their units?

A: As proposed in the rule, allowing a resident to smoke in their unit or building common area is not an accommodation that can be granted under these regulations once effective.

So, by HUD’s own acknowledgment, disabled people are out of luck. Likewise the mentally ill:

Q: Smoking prevalence is high among people with mental illness. Could a smoking ban be harmful to this population?

A: Although the proposed rule would not require that residents quit smoking, it may lead them to quit or substantially cut back…

This particular HUD response is especially amusing, since it entirely evades the question. We can imagine a hypothetical in which the same mentally ill people were in the habit of pressing a button, and HUD had announced plans to inflict electric shocks on anyone who pushed the button. An identical Q/A in that scenario would run as follows:

Q: Will electrifying the button harm people?

A: Although nobody is required to stop pressing the button, electrification could lead to substantial reductions in button pressing.

So HUD knows mentally ill people will probably be harassed and coerced under the new policy. But they’re not doing anything to stop it.

Amusingly, HUD has insisted that its plan does not mean smokers cannot obtain public housing, even though in practice it means that someone who smokes will likely be unable to comply with the regulations required for them to keep their housing. (We’re not saying you can’t live here if you smoke, you just can’t smoke if you live here.)

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Public health policies that discourage smoking are probably desirable. There is very clear evidence that smoking, and secondhand smoke are detrimental to one’s health and are contributing causes to a host of afflictions such as asthma and emphysema. But it’s only poor people who are discouraged from smoking by punitive means. A serious effort to stop smoking across society would target the source, going after the cigarette companies who make their living killing people. Strict limits on production, stricter FDA regulations, heavy taxes can all change the incentives of production and thereby reduce the amount of cigarettes available. One might also consider the kind of advertising/labeling regulations popular in Europe, or expanding education campaigns. If HUD wanted to get people in its projects to stop smoking, it should at the very least guarantee free and readily available nicotine patches to all of its residents.

In fact, perhaps one could even consider addressing the underlying conditions of poverty and despair that might push some to smoke in the first place and certainly produce much more pressing public health issues. But well down at the bottom of the list of measures should be targeting the poorest users of the product and imposing strict penalties for non-compliance. It’s easy enough to bully and threaten people into quitting smoking. It’s much harder to actually be serious about public health concerns, and to remedy the underlying social causes of the issues.

Poor people’s lives are defined by precariousness: the constant threat of sudden expenses that wipe out one’s meager wealth, the constant possibility of job loss or eviction. HUD’s job should be to make those things disappear, to give people the comfort and stability that poverty has robbed them of. A smoking ban only increases the invasiveness of the monitoring and punishment regime to which the poor are nearly universally subjected. But further, by making these kinds of policy bargains, where you trade your freedom for a little bit of well being, we are eroding the possibility of having what we actually want – a free, healthy, happy life.

We Love Our Prizewinning Immigrants

America already loves certain kinds of immigrants. But the immigration debate isn’t about Nobel laureates.

When the Nobel Prizes were announced earlier this month, pro-immigration activists were handed an extremely persuasive talking point: all six of the U.S.’s prizewinners in the sciences were immigrants. With the exception of Bob Dylan, who is from outer space, every single one of the laureates was born in a country other than the United States. Champions of immigration reform quickly cited this impressive factoid as a new demonstration of why the country should be more welcoming of those from elsewhere, and why Trumpism risks destroying the country’s mind in addition to its soul.

It should be noted, first of all, that it is unwise to cite the receipt of a Nobel Prize as any metric of human intellectual or moral quality. Both Henry Kissinger and Milton Friedman have Nobels on their curriculum vitaes, despite being two of the foremost causes of international human misery. Notorious eugenicist William Shockley won the physics Nobel in 1956, and spent the rest of his days diagnosing the “intellectual and social deficits of the American Negro” and proposing to sterilize everyone with an IQ under 100. T.S. Eliot was a proud Nobel laureate, and advised that “reasons of race and religion combine to make any large number of free-thinking Jews undesirable.”

The various Nobel committees have notoriously erratic judgment, having awarded Barack Obama a Peace Prize for his expedient conduct of global drone warfare. Any attempt to build a society by recruiting Nobel laureates will attract some unsavory characters indeed. Woodrow Wilson has won a Nobel Prize, but would any country not be better off without the presence of an Woodrow Wilson? For every Malala on the list, there is a Yasser Arafat and Shimon Peres.

The same weakness undoes the “Steve Jobs was a Syrian migrant” argument. It’s a very good argument if you think Steve Jobs was a genius. If you think he was a talentless and evil parasite, on the other hand, the argument should technically steer you toward the Trump position. If “good, talented” immigrants make the persuasive case for relaxing border controls, then the presence of any “bad or cruel” immigrants makes a similarly persuasive case for tightening them.

The broader point here is that immigrants shouldn’t need to win Nobel Prizes. Pro-immigration activists often end up making arguments like this, that tout all the extraordinary virtues held by immigrants. In doing so, they miss the argument’s corollary: if immigrants should be admitted because they are angels, what about those who aren’t angels? As Brianna Rennix has pointed out previously in Current Affairs, liberal arguments for immigration are too often based on appeals to self-interest: immigrants grow the economy or they do the jobs we don’t want to do. Those who make arguments like this, well-intentioned though they may be, ultimately endorse the idea that immigrants should be admitted because they serve the rest of us. In doing so, they fail to make the moral case: immigrants should be admitted because they deserve to have the better lives they seek, and because we have no reason to deny them those lives.

The Nobel-based argument for immigration is all the more irrelevant and damaging because the United States already does love its prizewinning immigrants. The country never has a problem letting in those who can bring sufficient glory to the nation, or endow it with piles of money. We fast-track the applications of those whose intellects we can use (and make work visas available for those with MAs and PhDs), and we have an explicit provision for millionaire foreigners to bribe their way to legal status.

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When we’re talking about Nobel-winners, we’re simply not talking about the kinds of immigrants that Americans want to have thrown out of the country. This year’s physics prize was awarded to three British immigrants at Harvard. The Nobel Prize in Economics was awarded to two immigrants, one British, one Finnish. The so-called immigration debate doesn’t even touch these categories of immigrants. Undocumented British economists at Harvard do not show up in Trump speeches. The only immigrants America seeks to exclude are poor, black or brown immigrants, who usually don’t speak English. If the United States had a problem with unauthorized immigrants as a class then the government would be targeting (and people would be panicking about) the largest population of unauthorized immigrants in the U.S.: Canadians.

But nobody has problem with “immigrants” or “unauthorized immigrants” as broad categories, because immigration policy in the United States is informed by notions of how much each immigrant is worth, according to economic and race-based conceptions of the value of a human being. Citing numbers of Nobel prizes only reinforces this pernicious conception, and implies that immigrants should be measured on criteria of “merit” rather than need.

Moral licensing is a concept in social psychology, suggesting that when a group does something “good” it often then feels licensed to do more “bad” then it might otherwise do. It often manifests by permitting a few “exemplary” people from a disfavored class  to achieve high status, as an excuse to disregard or oppress the rest of them. The usually-worthless-but-occasionally-mildly-insightful Malcolm Gladwell points out examples of this, including the Nazis’ love of Jewish poet Berthold Auerbach, and how the election of Barack Obama provided American racists with a means of convincing themselves they weren’t racist at all. The celebration of Nobel winners risks enabling precisely this kind of moral licensing. It is perfectly possible, to laud some immigrants and simultaneously kill, deport, starve, overwork, and brutalize others. And if we think of ourselves as a country that is kind to immigrants, because we let PhDs and millionaires come here and win Nobel prizes, we will miss the number of Central Americans sent back to their home countries to face brutal violence, or the number of Syrians who must live desperate lives because the people of Idaho think refugees will rape American children.

We would do well to consider that immigrants achieve our basic moral worth not by winning Nobel Prizes, but simply by being human.

America’s All-Purpose Rent-A-Cop

Outgoing NYPD Commissioner Bill Bratton has made policing into a very lucrative enterprise…

New York police commissioner Bill Bratton recently announced that, come September, he would be stepping down from his post. After only two years on the job, Bratton is heading for the private sector, where he will become an advisor to “Teneo Holdings,” a consulting group founded by a former aide to Bill Clinton.

The move is a natural one, given Bill Bratton’s career trajectory. Over the years, Bratton has become very unusual kind of police officer: a “celebri-cop” who flits between the private sector and government service, alternating between lucrative consulting gigs and high-profile municipal appointments.

Before Mayor Bill deBlasio brought him on in New York, Bill Bratton headed up the police forces of both Boston and Los Angeles, as well as a prior stint in New York under Mayor Giuliani. In his public role, Bratton became known as a major advocate of so-called “broken windows” policies, a fashionable conservative “theory” of policing that advocates focusing on low-level property crime in order to deter higher-level violent crime. In practice, because it explicitly suggests a disproportionately punitive approach to minor crime, “broken windows” often translates into the systematic harassment of homeless people and African Americans. This has made the practice “controversial.”

Indeed, the “broken windows” technique could be seen in the 2014 death of Eric Garner, which happened only six months after Bratton resumed his post as head of the NYPD. Garner was confronted by police for selling untaxed loose cigarettes, and it was Garner’s outrage at being continually harassed that led police to tackle and ultimately kill him.

Bratton’s continuing embrace of broken windows practices in the face of evidence has made him an ongoing target of civil liberties groups in New York. The ACLU lamented that “Bratton has stubbornly held on to the philosophy of ‘broken windows’ policing.” Bratton has faced ongoing pressure from the Black Lives Matter movement, which he has claimed practices “bigotry.”

But it’s not surprising that Bratton might have been clueless in the face of BLM’s rise; he is an old-school adherent to the Moynihan Report notion that the “distintegration of the family” is a far more salient factor than poverty in understanding the causes of crime. He has called rappers “basically thugs,” said that minorities trust the FBI because they “rely on the federal government so much,” and claimed that he has trouble hiring black police officers because it’s hard to find black men without criminal records.

But while Bratton’s racial history is disturbing, it is predictable. Rather, it is the business side of Bratton’s career that makes him unique in American policing. Bratton is possibly even more businessman than cop, having passed repeatedly through the notorious “revolving door” of U.S. politics, that rewards government officials with high-paying corporate jobs.

In his new capacity at Teneo Holdings, Bratton will “advise CEOs on how to deal with issues ranging from terrorism to cybercrime.” Teneo is a well-known golden parachute for ex-government workers looking to turn a profit in the private sector, and in recent years it has brought on advisers including former Senate majority leader George Mitchell, and Lord William Hague, the former British foreign secretary.

But Bratton’s business dealings extend far beyond Teneo. He has accumulated a good bit of wealth over the years in a variety of schemes. When he left the LAPD, Bratton joined “Altegrity International,” a global security firm. Just before his return to New York, Bratton won a $250,000 contract to consult with the Oakland Police Department as a member of the Strategic Policy Partnership. Similarly, before his stint in Los Angeles, Bratton had been a consultant to the LAPD in his position at Kroll Associates. All of this has led to the creation of a kind of “Bratton Brand,” which sells policing expertise all over the world (Conservative Prime Minister David Cameron even wanted to bring him on to head London’s Metropolitan Police.) Bratton has worked as a paid television analyst of policing for NBC, and dishes out advice at the Aspen Ideas Festival. But Bratton’s specialty is “re-engineering police departments,” moving to a city, equipping the police department with large amounts of military gear (“You name it, we are buying it,” Bratton proudly reported of the NYPD), and then hopping back through the revolving door onto more corporate boards.

Bill Bratton is not just a consultant. In fact, he’s something of an entrepreneur. In addition to his other funding streams, Bratton has founded two companies under his name, “Bratton Technologies” and the “Bratton Group LLC.” Bratton Technologies is the originator of “BlueLine,” a kind of “LinkedIn for law enforcement.” It remains unclear why cops would need a dedicated cop-only social network. But BlueLine does serve a purpose. It helps technology and weapons companies market their products to local departments, reaping lucrative contracts and making sure no municipality misses out on the latest in advanced weapon systems. BlueLine “enables vendors serving the law enforcement community to more effectively reach tens of thousands of individual police departments, forming a first-of-its-kind global law enforcement marketplace.”

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Bill Bratton also served on the Board of Directors of Motorola Solutions and SST. SST markets “ShotSpotter,” a gunshot-locator technology. ShotSpotter operates by placing microphones all over cities, which are intended to detect possible gunshots and alert police accordingly. The high rate of false positives has called ShotSpotter’s effectiveness into doubt, and some police departments seem to view it as an enormous waste of money. But ShotSpotter also comes with serious civil liberties implications, since it places all parts of a city under constant secret audio surveillance by police (Yes, this likely violates the Fourth Amendment).

But despite its problems, New York City embraced ShotSpotter, unveiling a multi-million dollar system shortly after Bill Bratton stepped down from the SST board and joined the NYPD. In 2014, while he was NYPD commissioner, Bratton was paid nearly $50,000 by SST, even as he oversaw the implementation of a $3 million contract between SST and the city. Shockingly enough, earlier this year Bratton called for the city to spend many more millions of dollars purchasing additional ShotSpotter equipment.

Bratton’s conflicts of interest are endless. (The Village Voice said they trailed from him “like toilet paper on an old man’s shoe.”) Another security firm Bratton worked for was given over ten million dollars by the city of Los Angeles while Bratton was in charge of the LAPD. And Motorola, naturally enough, supplies the NYPD with millions of dollars in communications equipment.

Bill Bratton has successfully bridged the law enforcement and corporate worlds like no other police officer in the United States. Few other police commissioners publish business books, after all. (Bratton’s book is all about “collaboration” and “networking,” presumably collaboration between city police departments and firms trying to sell them large amounts of expensive technological devices and military-grade weaponry.) Bratton has successfully built a multi-million dollar scheme, by which he introduces cities to the “theory” of harassing vandals and sex workers, and in exchange reaps vast sums of money from both taxpayers and corporations.

Is there anything terribly wrong with that? It’s a ‘free country’, after all, and if Bratton has find a way to make policing work for him, perhaps we should congratulate him. But once we remember that police officers carry guns, and that police have a common tendency to use those guns, and that black lives do matter, Bratton’s new model is somewhat terrifying. When policing is driven by the financial incentives of companies looking for contracts, and when police commissioners have major money to make, it’s easy to foresee a world in which ordinary people suffer while freelance supercops like Bratton do very well for themselves. If the Bill Bratton-style rent-a-cop is the future of 21st century policing, then God help us all.

The Miseries of Eviction: An Interview With Matthew Desmond

Current Affairs speaks to the Harvard sociologist about his book “Evicted: Poverty and Profit in the American City.”

Matthew Desmond, a sociologist at Harvard, has written a critically-acclaimed study of the role evictions play in the lives of America’s poor. In Evicted: Poverty and Profit in the American City, Desmond argues that the lack of access to affordable housing has become one of the most important, and unrecognized, social crises in the country. For his research, which involved years of ethnographic fieldwork in inner-city Milwaukee, Desmond was awarded a 2015 MacArthur Fellowship. Desmond recently spoke to Current Affairs legal editor Oren Nimni about his work.

ON: What was the goal of doing the research?

MD: For me, the first goal was just understanding. I’ve always been perplexed and troubled by how much poverty there is in America, the richest country with the most poverty, and I’ve always found that totally unnecessary. I wanted to understand the role housing plays in that story. If you read poverty literature, you read a lot about jobs and joblessness in families in all sorts of forms and mass incarceration. There’s just not a lot on housing. But we’re at this point where the majority of poor folks live in private apartments and get no assistance. They spend most of their money on housing, it’s a completely vital and imposing thing in their lives, and we just didn’t know much about it. When I started I had no idea how prevalent eviction was, I had no idea how consequential it would be. I thought eviction would be like a good window into [poverty], a good narrative device to hold the story together. I didn’t have any idea that it would be the central problem that emerged from the research.

ON: One possible risk I saw was that, over the past 10-15 years in particular, there have been a lot of books that pitch themselves as saying “this is actually the thing that explains poverty.” “It’s actually mass incarceration,” “it’s actually jobs,” etc. There’s a lot of value in saying that these are elements of poverty, the way it manifests, but if you say “no, this is actually the root cause,” and we address housing but don’t address other aspects of poverty, we will just continue to poke at the problem while the underlying conditions continue to reify.

MD: I so wish that was our problem. I so wish our problem was that we’re focusing too much policy on housing. I would love that problem. I think the problem we have is that only 1 of 4 American families that qualify for housing assistance get it. The vast majority of poor folks get nothing, from any level of government. If you ask the typical American, maybe not your readership, but the typical American “where do poor folks live”? They would say public housing, and that couldn’t be further from the truth. And so we have to have a huge investment that’s on the scale of the problem, we can’t settle for smaller change anymore when it comes to this issue of the affordable housing crisis.

Poverty is never just poverty, and this search for a silver bullet doesn’t confront the complexity of the problem and I hope the book does. You see the problem of joblessness, the problem of trauma, and we have to confront all of these things. I think you’re right, but also that housing has to be at the table and for a long time it just hasn’t been. And so any comprehensive poverty legislation has to have a housing component. I wouldn’t argue that that would a panacea. But also, we are existing in a world where the waiting list for public housing in our nation’s capital is like 20 years long. That’s out world. I would love it if we had inherited a world where housing assistance, etc., were addressed and we had dealt with that problem.

ON: One thing the book makes clear is that while it is partially about these grander systems of economics and housing availability, it’s also about actual people that make decisions every day in those systems. I’m thinking of the main landlord in the book, who makes decisions every day about whether to give leniency on rent or evict a tenant. There’s a place that you cite as the one time you intervened and convinced her to not call the Sheriff, which actually changed someone’s life, however marginally. How do we get at that, the fact that it’s not all systemic, that there are individual people making often devastatingly cruel choices?

MD: Or super generous choices. Part of me just doesn’t want something as fundamental as housing to come down to the whims of an individual, and I think that if you are a stable renter, it doesn’t. And there are legal protections and procedures for both landlords and tenants. But if you are someone like Arleen, renting at the bottom of the market and paying 80% of your income in rent, those laws literally cost money. And you exercise them at serious risk of eviction. So under those kinds of conditions, you really are at the risk of caprice either way; you could experience benevolence and magnanimity or callousness.

ON: It’s hard when we talk about discretion. Because a lot of times, for example in criminal defense, on one hand we’re pushing for judges to have less discretion, since discretion can result in racism. But when you have less discretion, all boats sink, and we end up with everyone just being harmed equally by policies like mandatory minimums. In the book you show this, too. In the trailer park, for example, when there’s more discretion, Tobin [the manager of the trailer park] is often kicking people out that need leniency, and it’s really based on his own personal whim, and in a really gendered way where men seemed to garner a lot more favor from him. But then when the new property management company came in, and had really strict evenly applied rules, that wasn’t necessarily a benefit to the residents either.

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MD: Well, people were terrified of that. There was real terror when the new property management firm was coming in and cleaned up. On paper, by all accounts they were more professional, they were fairer, there was a system. But that terrified the people of the park, because they thought that confronting that kind of bureaucracy or these kinds of rules would eviscerate this discretion that sometimes favored them. I hope it comes through in the book that Tobin bailed people out, paid for people’s funerals… and also evicted folks.

ON: A lot of times in the book you describe the difference between “stable poverty” and the tenuous poverty of a lot of tenants. What is the biggest core difference between the two experiences of poverty, other than the money?

MD: There are a ton of differences. Over the last 20 years, we’ve had a massive expansion of inequality, not just between rich and poor, but under the poverty line. There are stable folks, the working poor, and then this grinding poverty, often the non-working poor. The big difference is stability, as well as exposure to trauma. Another big difference is access to help… so there was this paper published a few years ago out of Johns Hopkins about per capita welfare spending over the last two decades and it showed that if you’re a working poor person, just in terms of per capita aid, you’re a lot better off than twenty years ago, if you’re a non-working poor person, it’s a lot worse. So just having access to things like the earned income tax credit, and public housing. Basically it’s an employment-based safety net, rather than welfare payments, which are almost dried up and haven’t increased since 1997, or SSI which is really just helping you scrape by. That’s the huge difference.

ON: One thing that was striking in the book is who landlords are. You see tenants that are living in pretty terrible conditions, clearly in violation of myriad housing codes, but at the same time its true that some (by no means all), of the landlords are actually lower middle class or stable poor. And they actually couldn’t afford to bring the house up to code without losing the property. What’s your feeling about these rules that are on one hand there for the benefit of tenants but on the other hand if they were all followed might actually deprive some people of housing, even as we try to make the housing better.

MD: I think the bigger problem is just that it’s hard to pay your rent if you’re a poor person. And under those conditions, rules and regulations, kind of tinkering with them, criticizing or praising them… there’s bigger game afoot. We’ve reached the point where most poor families are spending most of their income on housing, and 1 in 4 are spending over 70%. So addressing that point then allows us to address building blocks like code and things.

The history of housing codes can in one way be read as a history of unanticipated consequences. In another way, though, it is an enormous success story. If I wrote this book in the beginning of the 20th century, what would be different? Poor folks would be living in conditions a lot worse than they now are today. We’ve eviscerated slums from our communities. The book is totally clear on that; we have a long way to go, but we’ve made huge leaps forward on that score. But the other thing is this problem that’s facing folks, that they’re just at the mercy of landlords, and they’re just crushed by the high cost of housing. Until we fix that, it’s hard to regulate ourselves out of the problem.

ON: A lot of the people I represent are low wage workers, domestic workers particularly, and one thing that struck me when I started representing them was that, in my mind, a domestic worker-employer relationship looks like a low-wage immigrant worker working for a wealthy white family in the suburbs. But what I found was that many of my clients were low-wage immigrant workers, working for other low-wage immigrant workers. And those workers have to work two jobs and can’t take care of their kids themselves, so they hire a domestic worker, who they then underpay because of their own low wages. So they’re violating the law, minimum wage, overtime etc., but it’s also true that they actually can’t pay that wage because they’re getting screwed over by their bosses in turn… It brings up this thing where in a sense because of the way the employment relationship is set up, it’s poor people robbing the poor to feed the poor. Some of that appeared in the book as well; Tobin didn’t seem particularly well off. And a lot of the times the landlords actually weren’t big firms or property management companies but were regular people with a couple of dilapidated properties. Of course, by the end, the main landlord has expanded quite a bit and I think had like 34 or 35 properties. But they were also people who didn’t necessarily always have access to all the resources needed to keep the buildings up to code.

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MD: I think some would say that. Some would say the landlords in the book were undercapitalized so they have to resort to distractions. So, what’s acceptable? How much should a landlord that’s renting to a very poor person profit? So Sherena, the main landlord, took home about $10,000 [per month] after expenses, 36 units all squarely in the inner city. She rented almost exclusively to black families, she had a five bedroom home, Jacuzzi in the basement. She and her husband took vacations every year, they had two cars, and ate out every day. She took home in a month what her tenants took home in a year. So, there it is. And part of the profit model that she practiced was running some properties into the ground to be able to minimize expense and maximize profits. And there’s a ton of different landlord strategies. But there is a business model at the bottom of the market and there is a way of making money off of properties, not in spite of the neighborhood, but because of it…The big takeaway for me is like a lot of times when we write about poverty we write about it like it’s a sad accident and no one ever asks “Who’s profiting off this in a direct way? And what does that mean for how to fix poverty?” One thing that means is that if we don’t confront that bare fact, our public policies are going to fall very flat. And wealth will continue to be extracted and markets will just adapt.

ON: One thing I appreciated about the book was that the shine was off the apple as far as law was concerned. Legal remedies for both landlord and tenant were just viewed as pieces in a calculus rather than having some kind of mystical overriding force. I think a lot of people who haven’t experienced any poverty or housing difficulties would be baffled that you wouldn’t show up for an eviction court date. And there’s two elements to that, one point is that it’s just an economic calculus, should I pay all or part of rent, should I withhold but plan to move out and then not show to court, and then combined with that there’s a psychological element of I just don’t have the energy to deal with this.

MD: So when I first started this research and was going to eviction court with Sherena and seeing most of her tenants not show up…I mean, you’ve spent time in eviction court, housing court.

ON: Here it’s about 200 people every Thursday in a bureaucratic processing mill…

MD: It’s just so crowded and so much noise and so much is going on, it’s hard to even call in a court. It is, like you said, really just a processing plant. I remember giving a talk at a law school when I was starting this research and I got this question from a legal scholar, and I have been asked it a few times and then I realized, “oh, they’ve never been to an eviction court” like they have this image of what a court is and it’s not squaring with the image that I’m presenting. I’ve now gotten to go to a few housing courts and Milwaukee is not an outlier, I was in South Bronx housing court a few months ago and I learned that until just recently there had been a daycare inside because there were just so many children around. I think when I saw this high default rate a lot of tenants not showing, I tried to get a hold of that statistically, and there’s this little footnote in the book about this but we didn’t find anything, no connections, like if you owe more are you less likely to come, no, if you live further away no, so if the model is right then it means its random, so it’s like why did you show up, oh well you happened to find someone to watch your kids, or you had the day off of work, or you randomly just value that highly, or you think you have a case. So it’s really disheartening. And I think some commissioners, who are the ones who handle the cases in Milwaukee, some commissioners are known to be more pro or anti tenant and I don’t think it really matters, everyone’s just trying to get through the stack of cases and get to the end of the day. And there’s another stack tomorrow. So when we think of how to fix that, and when we think of suggestions of the right to civil counsel, it also means staffing the court so that it can function like a court.

ON: So in Boston Wednesdays are public housing eviction day and Thursdays are private housing eviction day and its very different to go into court on those days. The first client I ever had in Boston was a 93 year old woman getting evicted from subsidized housing. She was getting evicted for spilling juice on another tenant, which the landlord was charging as an assault. She defaulted on her first date, before I was representing her, just because it took her PCA [Personal Care Attendant] 2 hours to get her dressed every morning and the PCA didn’t get in till 8am so there was no way even without travel time (which was substantial) for her to make a 9 am court time. She had so many obstacles, but still came. I really didn’t expect her to ever. I think sometimes it’s a lot about mood, on that day, are you too depressed to deal with having to go to court, or do you think you can bear it?

MD: I think that comes through a few places in the story. Where one of the tenants in her first eviction, there were two things really, like one she didn’t think it was a big deal, and there was this moment where I was kind of trying to say “Aren’t you nervous? This is your first eviction, aren’t you nervous about it going on your record?” And her response was, “all my friends except my white friends have evictions on their record.” The racism was staggering and the whole thing is normalized. And the second thing is that I think she could have gone to court, she thought she would be embarrassed, though. She told a story about her mom going to court and the judge being rude and not winning anyway and …she has a bit of a point. I ask myself, if you had to go and face off with an attorney, would I go? And I have a PhD. And Patrice, a tenant in the book didn’t finish high school, would you want to go in there against a lawyer or a landlord that’s in there all the time and knows the system?

ON: In the book, although there’s a lot of hope and struggle, there’s also this pervasive hopelessness. Overwhelming hopelessness. Particularly when the movers are coming to kick people out and initially they’re in a frenzy and then just succumb to despair. A lot of the movers were even moving out people they knew. What is that like, that amount of human misery caused by other humans? What did you see from the tenants, in terms of how they dealt with that constant overwhelming force?

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MD: A good amount of dark humor. I think the movers try to do it as civilly as possible… if that’s even possible, by being polite and asking people things. But in the end they have a ton of houses to do by the end of the day. The amazing thing is just that you open your door, and the next minute your house is just not your house anymore, and they’re flipping on your lights and opening your cupboards and the invasiveness is astounding. And you’re moving people out in all circumstances; first eviction of the morning you’re waking them up, and the woman you mentioned was just cooking dinner and like she knew the day was coming but didn’t know exactly when it was going to be. And I remember she had this chalkboard on her wall with like a to-do list of the most pedestrian things like oil change for clock, homework, you know normal parts of home life. I think the psychology is really complicated about what that does to someone. You know we have this paper that links eviction to depression and it shows that evicted mothers, two years later experience high rates of depression and we control for rates of homelessness and other fallout of eviction, so one way of thinking about that relationship is to say that eviction itself, the physical act of removal leaves a mark, above and beyond the later fallout.

ON: Are there solutions short of full redistribution of property or wealth that will actually have an impact? Can any little tinkering really effect this? Or will the market just shift around whatever you try to do?

MD: There are little things, there are free things we can do that would matter. There are also things that involve an investment and this is a problem deserving of an investment. Among the free tinkering things… can we have a conversation about eviction records? Should they be public and free and put online for all to see? They have real effects on people’s ability to get housing. And I don’t have to tell you this, but most families that go to eviction court have no legal representation; there’s no check against a landlord’s claims for most cases. And the results of those cases just go up online for free, and they can stop you not just from getting safe housing, but also keep you from getting public housing. Can we have a conversation about that? It would be costless to limit those records. Or can we have a discussion about renter discrimination, about how landlords can just turn away folks with public housing vouchers just because they have vouchers? It’s a really immense barrier that stops people from moving into safer neighborhoods with better schools. I think we need to have a conversation about that. Then, moving from that end of the spectrum to the other, we do have to have to confront the fact that people just don’t have money. So, as you know, the book comes out in favor of a universal voucher idea. We don’t have to reinvent the wheel, the program we have works pretty well, but we just expand it to everyone below the poverty line. That would have a huge, huge effect on poverty in America and would make evictions and homelessness rare. That’s a solution that’s equal to the scale of the problem, and one that’s within our capacity.

Melania’s Plagiarism Actually Just Shows How Vapid Political Speeches Are

Democrats should be troubled at how easily their rhetoric can be reused at the RNC…

Before it was discovered to have been plagiarized from Michelle Obama, Melania Trump’s speech yesterday at the 2016 Republican National Convention (RNC) had initially been praised by members of both parties as one of the best speeches of the RNC, a moving performance. Melania had inspired RNC attendees by saying the following:

My parents impressed on me the values that you work hard for what you want in life, that your word is your bond… Because we want our children in this nation to know that the only limit to your achievements is the strength of your dreams and your willingness to work for them.

But in 2008, as it turned out, Michelle Obama had roused attendees of the Democratic National Convention with a similar line:

Barack and I were raised with so many of the same values: that you work hard for what you want in life, that your word is your bond… Because we want our children — and all children in this nation — to know that the only limit to the height of your achievements is the reach of your dreams and your willingness to work for them.

Melania’s plagiarism quickly blew up into a scandal. It became the front-page story on CNN, well above news about honor killing in Pakistan, fraud charges against Volkswagen executives, and Turkey’s post-coup purges. The New York Times decided that Melania’s plagiarism was so important that it assigned four reporters to the story. (It also parlayed the incident into a fashion column entitled “Melania Trump’s Speech May Not Have Been Original, but Her Dress Was”) On Twitter, Melania was duly mocked and castigated for her theft.

Liberals have jumped all over the scandal. It’s too delicious to pass up. For one thing, the original writer of Michelle Obama’s speech now works for Hillary Clinton, so that Trump plagiarized from Hillary’s own speechwriter. And it’s a perfect opportunity to laugh at the ineptitude and stupidity of Republicans generally and Trumps specifically. 

But what Melania Trump’s plagiarism demonstrates more than anything else is that political speeches are largely vapid and interchangeable. They’re so impersonal and without meaning that Melania could give Michelle’s speeches, and Michelle could give Melania’s, and hardly anyone would know the difference. The distance between the parties is not so great: they are united by their common clichés.

Melania Trump could comfortably crib from Michelle Obama because contemporary political speeches are almost nothing but a string of empty nationalistic platitudes. Barack Obama himself, supposedly a brilliant speechmaker, has almost never in his entire political career uttered a single memorable phrase (can you think of one? No, that waffle about the red America and the blue America doesn’t count.) The difference between Obama’s rhetoric and Ronald Reagan’s consists of little more than slight variations in word choice. (Reagan: “I am speaking of the problem of our national security. Our nation is in danger, and the danger grows greater with each passing day.” Obama: “I’ve authorized U.S. forces to take out terrorists abroad precisely because I know how real the danger is.  As Commander-in-Chief, I have no greater responsibility than the security of the American people.”) We know the whole phrase bank: no greater country in the world; the security of the American people; our hopes, aspirations, and dreams; my parents always taught me; the values that unite us. Thus even if Melania hadn’t directly plagiarized from Michelle Obama, she would almost certainly have ended up saying essentially the same thing. Her main sin seems to be that she forgot to jumble the words around a little.

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If anything, the whole plagiarism scandal reflects somewhat poorly on Michelle Obama. One reason Obama’s words were able to play so well at the RNC was that in the lifted passages, Obama was speaking using the conservative language of “bootstrapping.” Obama’s sentence, that “the only limit” to one’s achievements is the height of one’s goal and the “willingness to work” toward it, is the Republican story about America. It’s the story of personal responsibility, in which the U.S. is overflowing with opportunity, and anyone who fails to succeed in such a land of abundance must simply not be trying hard enough. 

People on the left are supposed to know that it is a cruel lie to tell people that all they need to do is work hard. There are plenty of people with dreams who work very hard indeed but get nothing, because the American economy is fundamentally skewed and unfair. This rhetoric, about “hard work” being the only thing needed for the pursuit of prosperity, is an insult to every tomato-picker and hotel cleaner in the country. It’s a fact that those who work the hardest in this country, those come home from work exhausted and who break their backs to feed their families, are almost always rewarded the least. 

Far from embarrassing Melania Trump and the GOP, then, it should be deeply humiliating for Democrats that their rhetoric is so bloodless and hollow that it can easily be spoken word-for-word in front of a gang of crazed racists. Instead of asking “why is Melania Trump using Michelle Obama’s words?” we might think to ask “why is Michelle Obama using the right-wing rhetoric of self-reliance?” Observers have noted that the current GOP platform is one of the most extreme ever adopted. If words from Democrats can fit in such an environment comfortably, that’s a major failure on the part of Democrats. It’s always been a weakness of the Obamas’ politics that it pays excessive tribute to the Republican worldview. (Reagan’s Republicans were not a “party of ideas,” as Obama describes them. They were a party of death squads.) The Melania incident should show just how troubling that is. 

Of course, the whole plagiarism affair is a totally pointless distraction from everything in the world that matters. Vox’s Matthew Yglesias insists that the Melania incident is “one of the most important things that has happened” at the convention. That may be true, insofar as nothing of any importance happens at the convention. But there is something more important happening there, namely the endless parade of ominous, apocalyptic, racially-tinged demands for vengeance. While four New York Times reporters comb through Melania’s clichés about the American dream to see if they are identical to Michelle Obama’s clichés about the American dream, the Republican Party is whipping itself up into a frenzy of anti-immigrant bloodlust.

But the obsession with form over substance is characteristic of the liberal press. To the college-educated, there is no greater crime than plagiarism. (Jonah Lehrer, after all, was brought down because his books were plagiarized rather than because they were terrible.) The Melania Trump scandal represents the absurd logical extreme of this mindset. It doesn’t matter if you’re spouting total horse manure as long as it’s your own vaguely original horse manure.

If the plagiarism scandal is interesting, then, it is interesting because it exposes the bipartisan vapidity of modern political speechifying. It shows us that cheap myths about the rewards of “hard work” are now central to both parties’ vocabularies. To the extent that Melania Trump has demonstrated this, it should bring shame upon the Democratic Party.

At the same time, perhaps we should be slightly more concerned by the torrent of racist rhetoric pouring forth in Cleveland than by the possibility that some of this rhetoric may have been heard before.

There’s Nothing Wrong With Feeling Entitled To Your Education

Loathsome as she may be, Abigail Fisher deserved to go to the University of Texas.

Abigail Fisher, the plaintiff of Fisher v. University of Texas, is not particularly well-liked on the left. After Fisher was denied admission to the University of Texas in 2008, she sued the school claiming that unconstitutional affirmative action policies were responsible for her failure to gain entry. The case has since charted a tortuous route through the American courts and is scheduled to be ruled on by the U.S. Supreme Court by the end of its current term. If the Court rules in Fisher’s favor, race-based affirmative action programs could completely disappear.

Because of this, many have been understandably hostile to Fisher. Indeed, she is easy to caricature as the embodiment of every insufferable, self-aggrandizing tendency among white people: someone so furious that her rightful place in college was “stolen” from her by minorities that she was willing to take the matter all the way to the Supreme Court. Fisher was almost certainly denied because of her academic record rather than her race (there were numerous black students with better grades than Fisher who were also denied), black students represent only a tiny fraction of UT’s student body, and yet Fisher persists in nastily blaming black UT students for her failure.

Mockery of Fisher has thus been widespread. She has been called “too dumb to get in,” a “pasty pop tart,” a “noted dummy,” and a “soulless ginger looking for a handout.” On Twitter, black University of Texas graduates waved diplomas at her using the hashtag #StayMadAbby. Open letters were written to her, and she was laughed at relentlessly as a whiny, oblivious mediocrity.

Certainly, Fisher herself is nearly impossible to sympathize with, especially when one learns that she turned down an opportunity that would have enabled her to transfer to the University of Texas during her sophomore year, and that she has been working lucrative financial and marketing jobs after graduating from Louisiana State University.

Yet there is something disconcerting in the easy willingness of affirmative action supporters to adopt the rhetoric of “merit” against Fisher. Many of the criticisms of Fisher deploy the very language of “working hard” and “bootstrapping” that people on the left rightly detest when it is deployed by conservatives. Consider some of the things said about her:

 

  • The problem with Abigail Fisher… is that despite her relentless averageness, she believes that she’s entitled to treatment far surpassing her relentless averageness.
  • Instead of recognizing that she didn’t earn admission into UT-Austin, Fisher is attempting to validate herself by blaming affirmative action. Instead of unpacking that reality about her shortcomings, she packed up her privilege, went ahead and sued the school.
  • White mediocrity tends to complain and whine and not take responsibility for their own shortcomings
  • Stop being an entitled little brat and start working hard
  • #StayMadAbby for white girls who considered a lawsuit when trying harder wasn’t her thing.
  • not as smart as she thinks she is. will probably blame all the minorities for her mediocrity
  • I’ve spent too much of my life proving my worthiness to White people in both personal and professional spaces, and folks like Abby Fisher and Antonin Scalia are just going to have to stay mad while they chow down on their unseasoned meatloafs (or is it meatloaves? QTNA) and lament a world where they’re not just given stuff because they decided that they deserve it. I learned that lesson when I was five and my mom asked me if “I had McDonald’s money.” Long story short: I can only hope that the Supreme Court of the United States teaches her that too when they send her lily-why posterior back from whence she came.

 

And from the Nightly Show’s Larry Wilmore: You are not entitled to anything just because you want it. Welcome to life.

Notice how these criticisms frame things: Fisher didn’t deserve admission. She wasn’t smart enough. She hadn’t tried hard enough. People aren’t entitled to anything. This language is ripped straight from the conservative playbook, from the worldview that says: “life is hard, you don’t deserve anything just because you were born, welcome to the real world, nobody gets a handout.”

Now, all of this is partially being deployed against Fisher ironically: she thinks minority entitlements are causing her hard work to go unrewarded, when the reality is that if anyone believes they’re entitled to something they didn’t work for, it’s Abigail Fisher. But it still ends up accepting the idea that college admission is (and should be) granted to people who are smart and who work hard, and that nobody deserves it.

But people do deserve it; everyone should get to receive the best-quality possible college education, even Abigail Fisher. “Smartness” should not determine our material rewards, because smartness is distributed arbitrarily. As far as college goes, the only question should be whether individuals meet the basic standard to be able to do the work. Competitive admissions processes among students who are all plenty qualified to do well (but must do dozens of extracurricular activities in order to make themselves stand out) are a dysfunctional absurdity that should have no place in education.

Abigail Fisher was therefore right to feel “entitled,” though she felt it for the wrong reasons. She felt as if she deserved to go to the University of Texas because she was a white legacy applicant, the sort of person who should get to go. As people have rightly (and viciously) pointed out to her, who you are shouldn’t confer some kind of special rights on you. Yet that doesn’t mean people shouldn’t all have those rights to begin with; “meritocracy,” the idea that everything must be earned rather than being given as a function of our basic humanity, is a pernicious notion, one that cannot help but result in gross unfairness however it is implemented.

This is a problem with so-called “privilege” analysis more generally. It treats “privilege” and “entitlement” as somehow being in and of themselves bad things, instead of being good things that all people should get to share in equally regardless of their race. Yes, it’s unfair that white people get to see themselves as being entitled to a place in a top college when people of color have to work their asses off to get there. But the solution is not to taunt white people and tell them they’re not entitled to anything, it’s to expand that entitlement so that everyone gets the same kind of privileges that white people do. When a rich white teenager makes a deadly mistake, they’re given counseling and treated with leniency, whereas a poor black teenager would be thrown in prison. That doesn’t mean we should start throwing rich teenagers in prison, it means we should start affording to poor blacks the same kind of justice that we give to rich whites. Removing entitlements, instead of spreading them fairly, creates equality only by causing everyone to share equally in misery.

There’s something disturbing about laughing at Abigail Fisher for being “dumb.” Nobody who considers themselves on the left should ever be comfortable calling someone “dumb” or “mediocre” or telling them they don’t deserve something because of their SAT score. It’s one step away from this to adopting the full-blown conservative understanding of human nature and moral desert, and beginning to spew all the cliches about how “the United States thrives because of a culture of opportunity that encourages work and disdains relying on handouts.”

The very existence of elite, competitive undergraduate schools is impossible to defend. Whether someone receives a University of Texas-level education should not depend on whether they can succeed in some merciless rat race; it should be openly offered to all people who are minimally capable. There should not be “tiers” of state universities to begin with, because elitism is ugly and immoral at its core.

Abigail Fisher therefore deserved to go to the University of Texas. But it’s because she is a human being, not because she is white.

The Return of Shark Tank Capitalism

Shark Tank would like to think it’s vicious. It’s nothing of the kind.

The world’s smallest shark is the dwarf lanternshark, topping out at about 8 inches or so and generally fitting comfortably in the palm. Its belly, as the name implies, gives off a small amount of light, and its bites, it can be surmised, are not especially painful.

Shark Tank has now returned to television for a seventh season, which means ABC will once again work very hard to pass dwarf lanternsharks off as hammerheads and Great Whites. For while the show insists that it is showing the brutal, cutthroat side of the market economy, ultimately it makes being torn to shreds in capitalism’s ravenous maw look like being lazily gummed in a kiddie-pool of hand-sized glow-fish.

Shark Tank is set up as an entrepreneurship competition. Contestants come in with either existing businesses or ideas for businesses, and try to convince a set of extremely wealthy people to fund them. The drama of the program comes from the fact that the wealthy people are snide and belligerent, and make a big extravagant fuss out of the process of turning down contestants’ ideas.

It’s a good healthy hour of schadenfreude, watching middle-class people who have staked everything on their half-baked concepts get taunted and heckled by the rich. Sometimes it’s too painful to even sit through. In a Season 5 episode, a Texas couple pitches their idea for the “elephant chat,” a small stuffed elephant that they believe will help troubled couples. The idea, they say, is that when one partner is discontented, he or she will show the other the elephant, and they will realize they need to talk. As the five investors ridicule the deluded Texas newlyweds, in the couple’s defensive panic we suddenly realize that their own marriage is being held together by the elephant. They have borrowed tens of thousands of dollars from friends to fund their business, and blown it all on creating plastic molds for the elephant’s packaging. It’s a bleak and tragic moment, as it becomes clear just how much the relationship has been staked on the success of this useless product.

But the real secret of Shark Tank is actually that it’s much softer than it seems. Yes, contestants come on and cry as their silly products are made fun of. But a careful effort is made to ensure that most of what we see is a game of lively entrepreneurship rather than financial and personal devastation. When the show does follow-up reports on products from previous episodes, it only ever profiles those that have succeeded. The owners show their gleaming new production facilities, and talk about how Shark Tank changed their life.

When Shark Tank came on the air, Tom Shales of the Washington Post called it “sadistic” and said it “personalizes the desperation and pain experienced by victims of a broken-down economy.” But Shales is wrong; Shark Tank is insidious precisely because for the most part it does not convey this desperation and pain. Certainly, it will show a man who has mortgaged his house and spent his children’s college fund to finance some doomed tchotchke, and the audience will writhe in discomfort as he confesses to the sharks he has no backup plan. But the drama is soon defused; someone cracks a joke, the desperate are whisked away, and some bouncy ladies in matching outfits will sashay in to show off a catchy jingle for their signature mango chutney.

Shark Tank would have you think it’s a brutal depiction of the dog-eat-dog realities of the capitalist economy. Would that it were! In fact, it’s a feel-good show about the excitement of the boardroom. It romanticizes the rough-and-tumble of doing business, and the losers’ misfortune never really sinks in. The bites of these dwarf lanternsharks never really hurt; elsewhere lies the real carnage, the broken dreams, unemployment, and financial ruin on which the ferocious market economy must perpetually gorge itself.

TV’s Only Accurate Law Show

From getting stiffed on the public defender fee to negotiating with the D.A. in the bathroom to wading through mountains of discovery, Better Call Saul is the only law show that tells it like it is.

“You’re the worst lawyer ever!” shouts Jimmy McGill’s client, just outside the emergency room, moaning in pain. Just moments ago Jimmy suggested that, instead of killing Jimmy’s two clients, drug kingpin Tuco settle for merely breaking one leg a piece, a deal to which Tuco vigorously assented. “Hey, i just talked you down from a death sentence,” Jimmy replies. “I’m the best lawyer ever!”

At first blush this seems like another glib response thought up late one night in the writers’ room; but Jimmy isn’t wrong. In fact, for a public defender, a plea deal like that is a serious triumph. Yet every defense lawyer in the world knows this feeling. You negotiate your ass off to make the client slightly less screwed, but the client still ends up getting screwed. The system takes another chunk out of someone’s life, and you’re left grasping the most hollow of victories.

The broken-leg incident is a perfect encapsulation of why Better Call Saul is currently  the best law show on television, perhaps the best ever. At the very least it’s the most realistic. It gets what none of the others do, that law is grubby, full of banality, bureaucracy, and compromise. In a vicious system your ‘victories’ often feel like failures. Being a lawyer doesn’t mean giving thunderous closing arguments in defense of the Constitution, but standing in a courthouse men’s room begging a prosecutor to consider offering probation as he takes a massive shit.

Every episode of Better Call Saul is meticulously faithful to the realities of legal practice. Jimmy operates a one-man legal practice out of the back of a nail salon, and depends on court-appointed public defense cases to pay his bills. BCS recognizes the implications of Jimmy’s status; he can’t do legal research, because the cost of access to case databases far exceeds the budget of a nail-salon shyster. So every time he wants to look up a precedent, Jimmy must beg a friend at a major law firm. He must sound as professional as other lawyers, so he pretends to have a secretary and to meet people outside of his office for their convenience.


“Law is full of people like Jimmy McGill, getting through on false confidence and bluster, constantly having to hustle. It doesn’t consist of giving grandiloquent declarations before the Supreme Court, but spending night after night poring over boxes of documents.”


Little details like these will be highly familiar to lawyers, who are often just as exasperated watching courtroom dramas as doctors are watching House. The everyday legal world is not full of people like Denny Crane, William Shatner’s powerhouse senior partner from Boston Legal. It’s full of people like Jimmy McGill, getting through on false confidence and bluster, constantly having to hustle. It doesn’t consist of giving grandiloquent declarations before the Supreme Court, but spending night after night poring over boxes of documents.

The attention to detail in BCS really is extraordinary. In the show’s first courtroom scene, in which Jimmy gives a doomed argument in defense of some teenagers who have committed an unspeakable act, a television is wheeled before the jury to present video evidence. It takes a small eternity for the bailiff to bring out the television cart, which drags its wire across the carpet. The judge is half asleep and the jury barely paying attention. The moment neatly captures the tedium of courtroom life, the suffocating greyness and plodding tempo in which America’s courtrooms steadily roll out their injustices and absurdities.

The “fake it till you make it” aspect of legal practice is also well-captured. Jimmy’s legal skill is mostly of his brashness. Seeking to represent senior citizens, Jimmy buys a cream-coloured Matlock suit in which to charm old ladies. The gambit works, just as it does in real life. Traditional lawyering is much less about the law than it is about appearance, networking, and bluster.

There are plenty of other reasons to praise Better Call Saul. It’s a spinoff of Breaking Bad but is nothing like it; at least in its first season, it isn’t bloody and dark but rather funny, unassuming, and tender. In the years before he became BB’s flashy sleazeball Saul Goodman, struggling attorney Jimmy McGill is a deeply human and complicated person, likable and difficult. The show takes its time moving things forward, preferring to linger on small things and portray them to perfection.

One could expound endlessly on Better Call Saul’s virtues as a piece of television, and many have already. But the freshness of its take on law is the real diamond in the ruff. It might not even be noticeable until one sets Better Call Saul next to Law & Order. But when one does look at them side by side, it becomes instantly clear what a cheap cop-out Dick Wolfism really is. The excuse given for offering unrealistic melodramas is that they are more watchable. Nobody wants to see a public defender negotiating with the court clerk over his fee, a prosecutor forgetting which defendant he is offering a plea bargain to, or a two-bit lawyer scribbling a motion on toilet paper.

Better Call Saul proves that this is nonsense. It’s not that these things are inherently unwatchable, it’s that making grandiose cartoons takes much less effort. Better Call Saul’s realism allows better character building and  an actual opportunity to critique the legal system as it is, from the way plea deals are struck to the methods big law firms use to drown small time clients and lawyers in fees and paper work. Skillful writing, directing, and acting can make the commonplace engrossing. They can shine a spotlight into the dingiest corners, where most of our lives are lived. True art is about showing us what we are rather than reassuring us that we’re what we’d like to think we are. In depicting law in all its dreariness and grime, Better Call Saul puts itself in the class of television that goes beyond mere entertainment and achieves genuine artistic power.