Confessions of a Sometime Public Defender–Bail Edition (continued)

Although bail determines who is jailed and affects the outcomes of the cases, it is set by people without professional training in making such decisions. Judges go to law school, but a legal education does not teach how to set bail. A bail determination is not a consideration of precedents or an interpretation of statutes, but a prediction about human behavior that requires training in disciplines other than law.

On-the-job learning about how to set bail was also limited because judges could not systematically learn from their decisions. New York City judges were not regularly given information about the consequences of their determinations. They did not learn whether the person with a $1,000 bail was able to post it, and if so, whether that person came back to court at the scheduled times. There can’t be improvement without feedback, but such information was not distributed. Even if it had been, it would have been misleading. It would have only told the judge about one kind of error—the released defendant who did not come back. There was no way for the judge to get information about another error—the detained defendant who would have come back if he had been released.

Judges, however, did get feedback in one circumstance. The criminal court judges setting bail generally operated largely in anonymity, but they could expect to see their name in the tabloids if they had set a makeable bail on a defendant who then committed some heinous crime after release. No judge wanted that. Judges surely learned that to avoid public obloquy, it was better to set bail too high than too low.

While in some utopian world, justice is blind and neutral and that the forces of law operate so that individual judges do not matter, we all knew that was not true. The good attorney tried to learn about the bail-setting proclivities of the judge on the bench compared to those of the judge who was to follow in the next session. Stories circulated that Judge Jones, for example, had once had a car stolen and invariably set higher bail than other judges for a grand larceny auto. If he was sitting in the next session, the goal was to try to make sure that all car theft cases got arraigned before Jones took the bench. When Jones was sitting, the goal was to delay the arraignment in hopes it would go over to the next session with another judge.

Judges liked by the defense were not usually liked by the prosecution and vice versa although perhaps most were just viewed neutrally. Some were disliked by all for their personal temperaments—needlessly demeaning or sarcastic and often not bright. At least one judge, however, was despised by prosecutors and defense attorneys alike for both his temperament and for his judicial practices in setting bail.

I will call him Judge Harold. He had the reputation of being smarter than other judges. I don’t know if that was true, but while many judges were educated in local law schools, he was the graduate of the Ivy League. He never said that he was more intelligent than everyone else, but he tried hard to project that he was smarter than you.

He ran roughshod over defendants, prosecutors, and defense attorneys. Judges were evaluated by administrative personnel on how many cases they could dispose of, which meant either a dismissal or a guilty plea. When a defendant with little or no prior criminal record was being arraigned on an “ordinary” felony, Harold would browbeat the prosecutor. Only misdemeanor guilty pleas could be entered in criminal court where we were. The prosecutor’s consent was required to reduce a felony to a misdemeanor, but Harold told the prosecutor that the charges were going to be reduced. The prosecutor could protest, but Harold would say it again, and again. He implied that if the prosecutor did not do that, then Harold was going to be incredibly rough on that prosecutor for the rest of the session, and rough on him in the future, too. Almost always the prosecutor would reduce the charges if there was going to be a plea of guilty.

Harold would then tell the defendant that if he pleaded guilty, he would order a sentencing report and would follow the recommendations of that report. The defendant could get up to a year in jail, but he might get less or even a sentence of no jail time. If the defendant did plead guilty, Harold said, he would release the defendant without any bail. But if the defendant was released and did not return to court for sentencing, Harold continued, when the defendant was picked up by the authorities and brought back to court, he would appear before Judge Harold who definitely would give him the one-year sentence. If the defendant did not take the plea offer, then the judge would, he said, set significant bail so that it was unlikely the accused would be released. When protests were made that he was using bail to coerce pleas, he would reply that a released defendant had hanging over his head the automatic year of jail if he did not return. This incentive to return, Harold maintained, was comparable to the high money bail. It was all equal, he would say.

Most of these defendants jumped at the offer. Often this was their first time in jail, and the day spent there had terrified and exhausted them. Whether guilty or not, they just wanted to get out. Little I might say would register with them. All they heard was, “If I plead guilty, I will get out of jail now.” Few thought about the later possibility about being sentenced to a year.

As promised, Harold set high bail on those would did not take a plea, and they were locked up. The normal course in those days was that if a defendant was expected to be in custody, the case was adjourned for three business days when a preliminary hearing would be held. The formal purpose of that hearing was to take testimony to see if there was reasonable cause to believe that the accused had committed the crime. If that reasonable cause was found, the case went to the grand jury that had to act within thirty days. But the court appearance three days after the arraignment also brought the case before a judge other than Judge Harold. Many of them would conclude that Harold had set unnecessarily harsh bail, and they would lower it.

Knowing this, Harold did one other thing: If the defendant refused the plea, Harold would immediately hold a preliminary hearing. Generally, this was over the objection of both the prosecution and defense because neither had talked enough with witnesses to be prepared. Harold did not care, and then during the hearing he found ways to demean the attorneys. I don’t remember a hearing where he did not find the requisite reasonable cause. This meant that the defendant who had been arrested a day ago and had been told that he could go home if he would only say that he committed the crime was now going to jail for at least thirty days waiting for grand jury action.

It was all coercive. It was not the proper use of bail. The adversary system enshrined in the Constitution fell to the wayside as the judge controlled the outcomes. The United States Supreme Court had commanded that pleas of guilty had to be voluntary, but these guilty pleas were hardly that. The criminal justice system in Judge Harold’s hand seemed dirty and slimy.

There was little to nothing that a defense attorney could do to prevent most of this. I was glad when my position changed so that I did not have to appear in front of Judge Harold, but he kept popping up in my mind years later when he wrote some books about criminal justice that were talked about frequently in the right-wing media. I thought that the books were garbage. He related horror stories without any citations or references. I certainly doubted that he had firsthand knowledge of them. He might say that for some technical reason, a court determined that the Miranda decision had been violated and as a result some horrible criminal was now free on the streets, but surely that had never happened in his courtroom. We defense attorneys talked about this, and no one knew when he had ever found a Miranda violation or an illegal search.

Many years later, when I had been in academics for a long time, a publisher asked me if I would review a manuscript of Harold’s. I replied that I was hardly a neutral reviewer, that I had practiced in front of Judge Harold, and that I had thought that he was a despicable judge. Furthermore, I thought that his previous books had been tabloid trash. Go figure—I was still asked to review the manuscript. That manuscript was not published, and although I don’t remember for sure, I think that I was given $100 worth of the publisher’s books.

(concluded September 18)

Confessions of a Sometime Public Defender–Bail Edition (continued)

The bail-setting decision is crucial to a defendant, of course, because it can determine whether a person will be held in jail or will go home until the case ends. More than that, bail affects the outcome of the case, especially for what are often considered “minor” cases.

For example, if a woman had been arrested for shoplifting but was released from jail on bail, she was unlikely to take a later plea offer that would send her to jail for sixty days. In the normal course of the court business, she would not come to trial for months and months. If she stayed out of trouble for that time, she would tend to look reformed, and almost always, she would be offered some sort of no-jail plea. Indeed, what would be the point to the expensive process of locking her up if she is already reformed?

If, however, that same person was not bailed out, after several weeks in jail, having come to grips with a jail life and knowing the important fact that her incarceration would end in the not-too-distant future she was likely to take a plea offer of sixty days. Similarly, the minor drug offender out of jail might enter a treatment program, and if he appeared to be succeeding in it, sending him back to jail was senseless. This opportunity, of course, would not be available for the defendant who did not make bail.

Serious charges are affected in other ways. It is easier for a defense attorney to prepare a case when the defendant is out of jail. The best person to find witnesses and get them to cooperate with a defense attorney is often the defendant himself. For example, when there was a barroom fight, if an investigator or I went to that bar, few, if any, would talk with us. If the investigator or I went with the defendant to the bar, the likelihood that someone would tell us about what happened would increase tremendously.

When the defendant is out of jail, communication between attorney and client is easier. There might be frequent discussions in my office when the accused was bailed, and an hour interview took an hour of my time. When the defendant was in jail, the situation was much more complicated. I would have to travel to the jail at a time when I was permitted to talk with someone held there, and often in New York the defendant was incarcerated an hour or more from my office. After getting there, it could take from fifteen minutes to an hour to have the defendant produced in an interview room, and after the discussion was over, there was travel time back to the office. An hour interview could easily take four hours, and that meant less communication between attorney and client.

In addition, most attorneys feel that a jailed defendant is less likely to succeed at trial than one at liberty. Jurors, consciously or unconsciously, will think that if a defendant is already in jail, there must be a reason, and he should stay there.

Many efforts were made to prevent jurors from learning that a defendant was being held in detention. The accused at trial does not have to wear prison garb, and he was always brought into the courtroom and handcuffs removed before the jury would be allowed into the room. Even so, most of us felt that either through slipups or because the demeanor in some ineffable way is different between a jailed and a released defendant, the jury would somehow learn or sense that a defendant was not at liberty. On the other hand, if a defendant was out on bail, I would try to have conversations outside the courtroom or outside the courthouse at times when jurors might see us to try to send the subliminal message that maybe this guy really wasn’t guilty, or why wouldn’t he be in jail now?

While the setting of bail was hugely important, it was usually initially a quick, slapdash affair. The prosecutor could suggest what it should be; the defense attorney had the same opportunity; and the judge would make a decision. Various pieces of information were considered in the bail setting. The seriousness of the charges weighed heavily. As a general proposition, the more serious the charges, the higher the bail. It was not unreasonable to assume that a person who might be sentenced to fifteen years in prison was more likely to flee than one facing only a year. Not surprisingly, most people charged with murder were not granted any kind of bail and instead were simply remanded to pretrial detention. But don’t assume the accused murderer who is granted bail and released will not come to the scheduled court appearances if they are granted bail and released. I represented a person who had twice been convicted of the same murder but both times the convictions were reversed for errors at the trial. He was released from detention while he waited for his next murder trial. He diligently appeared for each court appearance. And he was found not guilty at his final, error-free trial.

A defendant’s prior record was also considered in bail-setting. Among the court papers was a “rap sheet,” which in my early days was often called a “yellow sheet” because it was printed on yellow paper. This, in theory, contained the prior record, but it seldom did. Generally, only the arrest charges leveled by the police were listed without the result of the case. Those arrest charges often made that prior case seem much more serious than it was. For example, as in one of my cases, a person had been initially charged with robbery when he was really accused of pushing a clerk as he tried to leave a store without paying for a bag of Doritos. In court the case was not treated as a robbery, and he pleaded guilty to a minor misdemeanor. Since the disposition was not entered on to the rap sheet, the prior criminal record would contain a robbery offense when it was a low-level larceny. Because his prior record looked worse than it was, higher bail than necessary might be set. The Legal Aid Society fought for more accurate records, and rap sheets did improve over time, but incomplete information was still frequent. (My favorite listed disposition was on the rap sheet of the defendant from one of my first trials. The defendant was about sixty years old, and he had been arrested dozens of times around the country for minor offenses. About two decades before I met him, he had been arrested in Terre Haute, Indiana, for vagrancy, a charge that is unconstitutional today. This arrest did have the disposition: “Put on the bus to Chicago.”)

The prior record was considered important for bail for two reasons. The lengthier the record the more it could be concluded that the defendant had a disregard for the law. The higher the disregard for the law, the less likely it was that the person would follow the law and come back to court for scheduled appearances. In addition, a person who was a recidivist was more likely to get a longer sentence if convicted than one without a record, and, facing more jail time, he had a greater incentive to flee.

Ties to the community was the third consideration for bail. Someone who was firmly embedded in New York was considered a better bail risk than someone else. Possible factors here were the length of time living in the City and at a particular location; a job and its duration; family; and so on. The first source for this information was an interview conducted after the arrest and before the initial arraignment. The interviewer filled out a form, which became part of the court record. A defense attorney, however, could help in establishing ties to the community. The form indicated whether information, say, a job, had been corroborated. Often it was not confirmed because the interviewer could not reach the employer. The interviewer could only call and may have failed to reach the boss because of the hour when the call was made, which could have been after working hours. Since the arraignment might occur twelve hours after the ties-to-the-community interview and corroboration might then be available, I or an assistant might be able to corroborate information that had not been confirmed before. It could make a great deal of difference in the bail decision if I could tell the judge that I had talked to the defendant’s employer, and, yes, he did work there, and he would have a job if released. In this and other ways, a defense attorney could affect the bail-setting decision.

Financial resources also came into play in the bail setting. The theory has been that a loss of the posted amount would be such a blow that those posting it would make sure that the defendant would show up in court. The impact of the forfeiture of, say, $1,000, of course, varies. To the wealthy it may mean little, but it could mean the world to someone just above the poverty level. Logic, then, suggests that bail should be set higher on a well-to-do defendant than on the less affluent. But that conclusion, however, is often counterbalanced since defendants with money probably have a good job or a home with equity that they wish to keep—in other words, they often have solid ties to the community.

The possible future dangerousness of the defendant, while it was not supposed to matter, also affected the setting of bail. In some jurisdictions, including federal court, a defendant can be jailed in advance of trial based on a prediction that he will commit violent acts before the trial—what is called “preventive detention.” New York’s statutes, however, said the only consideration for bail was to assure the defendant’s presence in court. New York had no legal preventive detention. Even so, we knew the judge was going to set higher bail on someone who looked as if he might commit violent acts before trial than someone who did not seem as dangerous. This seemed at least in part a normal human impulse even though it was against the law.

          (continued September 16)

Confessions of a Sometime Public Defender–Bail Edition

When he committed suicide, Jeffrey Epstein was being held in jail because he had been denied bail. Headlines have also recently proclaimed that R. Kelly was denied bail, as they did earlier for Paul Manafort. Bail decisions also often make it into at least the local news when a person out of jail on bail is arrested for a heinous crime. But bail has also become newsworthy because California, New Jersey, New York, and other states have reformed their bail laws, and “progressive” prosecuting attorneys have adopted policies of not asking for bail for those arrested for various minor crimes. Furthermore, activists decrying this country’s mass incarceration have turned a spotlight on this aspect of our criminal justice by emphasizing the high numbers of people in jail simply because they cannot post bail. No one has the precise number jailed for the lack of the needed money, but it may be as high 400,000—the equivalent of jailing eighty percent of Wyoming’s population.

So bail is in the news, but our bail system can be easily misunderstood. Part of the reason for that is that we do not have a single unified bail system. Instead, each state and the federal government has its own laws and methods for the setting of bail. The systems, however, have common characteristics.

At least legally, bail is not a punishment. It is set on someone who has been arrested and charged with a crime, not someone convicted of a crime. Only when someone is convicted can punishment follow.  Instead, the original purpose of bail was to guarantee that the accused would be amenable to court processes and make all required court appearances. Bail was to make sure that a person charged with a crime did not flee and appeared for trial.

The purposes of bail were expanded with the federal Bail Reform Act of 1984 which allowed the detention of arrestees because they are a danger to the community, so called preventive detention. However, this was a limited change; it only applied to federal courts, and state criminal cases dwarf the number in federal court. Moreover, most states have not adopted preventive detention. Bail is overwhelmingly set only to prevent the flight of arrestees.

We lack one bail system not only because each jurisdiction has its own bail laws, but also because even localities within a jurisdiction have different cultures for bail-setting. Thus, the amount of bail set and the overall rates of release on bail vary significantly from one city or county to others in the same state. And there is another factor that varies significantly around the country—the quality of the detention facility for those who can’t make bail, which, on the whole, runs the gamut from bad to abysmal.

I can’t, therefore, describe our country’s bail system. I can only give impressions of one system when I practiced law, New York City. That at least might yield a better general understanding of bail in “ordinary” criminal cases.

The sole purpose for bail in New York is to have arrestees show up for required court appearances. Frequently, the bail-setting judge concluded that an accused would return to court without any conditions imposed. In that case, the arrestee was just released, or as said in New York and many other places, “released on recognizance” or ROR. Other times, however, the court concluded that bail was needed.

The basic form of bail was a monetary requirement. Let’s say that a $1,000 bail was set. That meant that if $1,000 in cash was posted with the court, the defendant would be released from jail. The defendant would have the obligation to make all scheduled appearances. If the defendant made the required court dates, at the end of the case no matter what the result—acquittal, dismissal, conviction, prison or no prison—the defendant or whoever posted the money would get $1,000 back minus a service fee. If, however, the accused did not make the required appearances, the state would keep the $1,000, and the defendant would have committed the crime of bail jumping, which carried additional penalties in addition to those for the originally charged crime.

Although judges sometimes required that only cash could be posted, most often the monetary condition was “cash or bond.” In my example, that meant that $1,000 cash or a bond could be deposited with the court clerk.  Someone on behalf of the defendant would purchase a bond from a bail bondsman whose offices dotted the streets around the courts. The law regulated the premium the bondsman could charge, but the bondsmen could decide what collateral they would need to issue the bond. That might be anything of value—jewelry, car titles, bankbooks, property deeds. If the defendant made the court appearances, the collateral went back to whoever gave it to the bondsman, but the premium was an irrevocable fee that the bondsman kept for his service in writing the bond. If the defendant jumped bail, the bond company kept the collateral and the fee, but was supposed to pay the court $1,000. And the bond company had rights to bring the defendant back to court, and, thus, all those movies and TV shows about bounty hunters employed by the bond companies.

In New York, I saw few examples of bond companies bringing bail jumpers back to court. This would indicate that the companies lost money in these situations unless the collateral was worth more than the bond, but that is true only if the bond company paid the $1,000. I never saw a report on how often that happened. Often the companies would in effect plea bargain and get the $1,000 figure lowered. It saved the state the expense of litigating to collect the fee, but it also meant that the bond company was making money and doing little to insure a defendant’s presence in court.

Through history there have been many examples of corruption as a result of the bail bond business. Not much public attention has been paid to the collection of forfeited bonds. The bribery incentive to have state representatives accept less than the forfeited amount can become large.

The bond system also has another problem. It in effect outsources the decision as to who will be released to the bondsman. A person gets released if the bond company decides to write the bond, and that decision solely rests with the company. If the bondsman finds the collateral sufficient, the person gets released; otherwise not. In this way, it is really the bondsman who determines who gets out of detention, not the court. For these and other reasons, many states have outlawed the use of commercial bail bonds.

Whatever the bail system, the setting of bail is a crucial decision for a defendant.

(continued September 13)

Snippets

My car was recently towed for being illegally parked. Of course, this was aggravating, but even more so because I had parked it in a place where I had legally parked for decades. Unbeknownst to me, a new sign had gone up making the spot a no parking zone. I went to retrieve my car from the forthrightly named Brooklyn Tow Pound. This being New York, I had to pay a lot of money to retrieve the vehicle, but I was surprised that in addition to the $185 “Total Tow Pound Fees,” which does not cover the parking ticket, I also had to pay a “Convenience Fee: Non Refundable” of $3.70. First, if any of the rest of the money I paid is refundable, please tell me how I claim it. Second, while the people at the pound were efficient and pleasant, how can anyone label a fee in retrieving a towed car a “convenience?”

The pro in a tennis clinic said that a point in doubles should last less than ten seconds. Manny, a co-participant in the clinic looked thoughtful and said, “That sounds like my early love life.”

As it looked as if Dorian would slam into Florida, a Miami official said during a TV interview that southern Florida had adopted new building codes since Hurricane Andrew went through in 1992 the, at least in this case, ironically named Sunshine State. New construction would now weather the rain and winds better than in the past. I thought, “Oh, building codes. Those are a set of regulations.” Then I thought, “Oh, regulations are effective in protecting property and people.” And then I thought, “Regulations are just another way of saying protections.

Walking with Samuel Beckett one fine spring morning, a friend of his asked, “Doesn’t a day like this make you glad to be alive?” “I wouldn’t go as far as that,” Beckett replied. Sigrid Nunez, The Friend.

On the radio, I heard the prime minister of the United Kingdom described as “a racist, a homophobe, a misogynist, and a sexist.” Do these traits invariably come as a set? For example, are there racists who are also militant feminists?

I was ten and helping set up a meeting room in the church basement with two men parishioners. One asked me to get him an extension cord from a storage closet. When I brought it to him, he told me to hand him the female end of the cord. I was mystified and he said, “The part the prongs go into.” I asked, “Why is it called female?” He stopped and shot a nervous glance to the other man. He looked so uncomfortable that I thought that he was blushing. He mumbled something that was too soft for me to hear and quickly turned his back and started moving some tables. That was the end of the inquiry. I had to learn more about male and female plugs, as I did on related topics, from the streets and playgrounds.

I am Trump, Donald J.

I do not apologize.

I claim “fake news” and bray

Bigger self-serving lies.

“Without clear language, there is no standard of truth.” John LeCarré.

Greenland . . . Our New Manifest Destiny (concluded)

One of those in the Trump-is-brilliant camp is Arkansas Senator Tom Cotton. He recently published an op-ed piece in the New York Times. (Why is that when conservatives want to be taken as deep thinkers they so often publish in the “failing” Times? Mitch McConnell also placed an op-ed article with the “enemy of the people” the previous week. His piece was one about the importance of filibusters for our constitutional government and glossed over how he had removed those all-important filibusters for Supreme Court nominees.) Cotton contended that the Greenlanders should welcome coming under American sovereignty. Denmark now subsidizes Greenland to the tune of at least $650 million dollars annually. America has more money than does the Danish government, so we can do even better for the Greenlanders, Cotton maintained. The Senator surprised me. He wants to commit to a new and expensive welfare program. He opposes entitlement programs for American citizens, but he wants to open up the floodgates for those who are now foreigners. Is this the new conservatism? What do Cotton and the others feel about increased federal support for Puerto Rico? Or have I underestimated Trump? Were his remarks merely an opening salvo, and his real goal is to swap Puerto Rico for Greenland? The Art of the Deal may be more subtle than I ever thought.

I wonder, if in stating that America can increase governmental moneys in Greenland, whether Cotton has examined where the Danish subsidies go. Health care in Greenland is paid for by the government, and Danish subsidies support that. Cotton, who adamantly opposes the Affordable Care Act, expects America to expand single-payer medical services in the new possession. And here I thought that Trump supporters believed in America first!

Does Cotton realize that part of the healthcare in Greenland is for abortion on demand. Greenland now has one of the highest abortion rates in the world. In fact, abortions have exceeded live births in recent years. (Remember those long nights.) He supports the laws that prevent the federal government from paying anything for abortions in the United States no matter how poor the woman or how the pregnancy—think rape and incest–occurred, but Cotton wants to increase funding for this medical procedure in Greenland. (I am told that when residents of Greenland’s capital Nuuk do want a baby, they say, “Let’s have a little Nuukie.”) And perhaps Cotton should also examine how education is funded in Greenland.

Cotton is a hardliner about our immigration system, concerned that Mexicans and Central Americans are lured here by all the goodies they can get out of our government. Shouldn’t he and other conservatives then be concerned that when we increase the freebies to Greenlanders, illegal immigration will uncontrollably increase there as refugees see Greenland as a new land of welfare opportunity? Perhaps Cotton, who supports Trump’s border wall, is already planning to build a wall around Greenland to stop the illegal immigration that he must think will inevitably occur. Perhaps Cotton ought to give at least an estimate as to how much federal money he thinks we will spend over there.

I also wonder if Cotton and the other Trump-is-marvelous crowd have thought about the status of those who would fall under American sovereignty. If we own Greenland, will we provide a path to American citizenship for those who live there, or will they automatically be citizens? Will they have an unfettered right to permanent residence in the United States? If so, how long does one have to be a Greenlander for that right? Puerto Ricans are American citizens and can come and go to the United States whenever they wish. Guam, which we own, is similar. Those born on Guam are American citizens who can move to the rest of America. (For reasons I don’t understand while Guamanians have birthright citizenship, those born in American Samoa do not.) If Greenland is to be treated like Guam, aren’t conservatives concerned that refugees will flock to Greenland and have ice-floe babies who will be American citizens who can freely emigrate to America? I am guessing that before conservatives will grapple with such questions, they will have to ascertain whether Greenlanders lean Democratic or Republican. And perhaps even more important: Will there be a path to statehood for Greenland? Just because they have fewer than 60,000 people doesn’t mean they shouldn’t have two Senators and three electoral votes, just as long as they vote Republican.

We have acquired much territory through purchase in our history. As far as I know, we never sought to find out whether the people who already lived on those lands desired a new sovereign. In essence, they were treated like Russian serfs. You buy the land, you buy the people on the land. Should we who proclaim democracy and government of “we the people” continue such a feudal practice? Will there be some sort of plebiscite; will the leaders of Greenland be consulted? (I have no idea who the chief griot of Greenland is, but I am confident neither does our president. However, there is a good chance that Melania knows that person well.)

The Fox News writer points out, however, that we have bought lands before—including the Louisiana purchase, the Gadsden Purchase, Florida, and Alaska, and he concludes that Trump could simply buy Greenland. Hold on–it has never been that simple. We do have a Constitution and the consent of Congress or the Senate has been necessary for those purchases. We may say that President Jefferson and Secretary of State Monroe made the Louisiana Purchase, but in fact Congress ratified and authorized the funds for it. The Gadsden Purchase and the acquisitions of Florida, Alaska, and other lands came via treaties together with the authorization of the funds from Congress. A treaty, of course, requires not just the consent of the Senate, but consent by a two-thirds majority of the Senate. Do you really think that is going to happen? Or does Trump have another trick up his sleeve that he will maintain justifying him in his mind to take unilateral action and do another end run around our Constitution—that document that conservatives proclaim to love so dearly?

Greenland . . . Our New Manifest Destiny?

President Trump wants to buy Greenland. My first reaction: I was surprised that he would want to buy white people. But then I did some reading, and I learned that Greenland’s population is 88% Greenlandic Inuit, with 12% Danes and other Europeans. Maybe that eight-to-one ratio explains the acquisition mania.

On the other hand, I never thought that Trump would think desirable a place that does not have forests to decimate and is not dependent on coal or other fossil fuels. In what seems ironic, Greenland is one of the greenest places on the planet. According to one source, seventy percent of its power comes from renewable sources, mostly from hydropower. But perhaps this is an attraction for Trump. He can fulfill his promise to bring back jobs to the West Virginia coal fields by “ordering” the Greenlanders under some national security rationale to use coal. I can see the slogan as Trump supporters wear tee shirts proclaiming, “Make Greenland Sooty (Again).”

I wondered how Greenlanders have reacted to the proposed purchase by a world leader who does not believe in climate change. Greenland is ground zero for global warming. An ice sheet covers four-fifths of the island; it weighs so much that it has depressed the central part of island making it almost a thousand feet below sea level. The glaciers have been experiencing increased run off contributing to the rise of sea levels. Does a lessened ice mass also mean that the land will rise?

Perhaps, however, the Greenlanders favor global warming. It would not be surprising. Greenland’s capital and largest city, with a population of more than 17,000, (Quick! What is it?) Nuuk averages high temperatures below freezing for more than half the year. I assume, however, that the tourist agencies point out that the high in July is a relatively balmy fifty degrees Fahrenheit. A few degrees warmer and perhaps the residents will be able to break out bikinis and speedos. During the summer, the sun rises at 3:00 A.M. and sets at midnight, so there is a lot of daylight for any unrestrained outdoor frivolity. Of course, during the winters, the sun is above the horizon for only four hours, but those long nights perhaps call out for other appropriate activities.  

If Trump does buy Greenland, you would think he ought to make at least one visit, even though that it is unlikely since he does not own a hotel there and won’t be able to bill the American taxpayers for his stay to increase his family revenues. But perhaps those long nights appeal to him for all the dark hour tweets he can unleash. And maybe he is already watching Greenlandic porn movies to find a star for another extramarital bedding during a long night. But with Michael Cohen unavailable, who is preparing the nondisclosure agreements and assembling the hush money payments? I may not have anticipated that Trump would float the purchase idea, but surely no one should have been startled that he showed the usual pique when the nasty Danish threw ice water on the idea. Canceling a scheduled trip to Denmark seems par for his course, but, of course, he does not own a golf course in Denmark and does not apparently have a way to bill us taxpayers and increase his revenues by a Copenhagen visit.

It was expected that conservative pundits would weigh in and maintain that Trump was again showing his genius. Too often the difference between these commentators and a rubber stamp is that the latter leaves an impression, but I was surprised that Trump-is-always-right sycophants have cited climate change—yes, climate change!–as a reason why the U.S. should purchase Greenland. An article on the Fox News website states, “But what makes Greenland particularly valuable to the United States is global warming. The unavoidable receding of Arctic sea ice will open a new sea route in the Arctic that can be used for both commercial and military vessels.” What especially struck me about this contention was the use of the term unavoidable. Global warming is happening, the writer to my surprise wrote, but his position is that it is inevitable. Increasing temperatures can’t be helped, apparently. I guess the writer believes that it is God’s will, so we should just go with it and seize the opportunities. If we can keep the warming going and the ice diminishes and the seas rise, new sea routes will open allowing ships to go where they have not gone before. So, stop being so negative about climate change (which Trump says is not happening) and revel in new sea lanes.

What the writer did not make clear, however, is why the new ship routes, if they occur, mean that it is essential that we own Greenland. Aren’t there many sea lanes around the world important to us where we do not own the adjacent land? Why is this different?

This writer also said, as did others who find a way to support Trump after he makes a pronouncement no matter what it is, that Greenland has valuable minerals that should not fall into China’s hands. Why, then, don’t we try to buy the mineral rights? Indeed, those of us who believe in free enterprise and fair trade should expect American corporations to see the opportunity and seek to get all this valuable stuff. These Trump-is-amazing writers don’t give an explanation for this apparent failure of American capitalism. Where is their faith in free enterprise without government intervention? Isn’t that the point of cutting governmental regulations, which they support?

(concluded September 6)

Put Labor Back into Labor Day (concluded)

          Ofttimes unions have been a scapegoat for various economic woes. At the time that Japanese car companies were first making major inroads into the American market and American automobile makers started to decline, I was at a party where I met Tina who worked for a major investment house. She railed against the auto unions and blamed them for the problems of General Motors and their brethren. I found this strange. The Japanese car companies were then known to take much better care of their workers than their American counterparts. That didn’t seem to indicate that the unions were the real cause of the problems. On the other hand, Japan car companies had devised a superior just-in-time system of assembly line production that the Americans did not have. The Japanese were simply more efficient. The foreign companies were simply better managed, but for Tina, and many others, it was easier to blame unions than to criticize the American corporate structure.

          It is not just narratives like Tina’s that has made the American corporate war on unions successful. It has been aided by laws passed by conservative states and legal decisions by conservative courts. It has also been furthered by our immigration laws and enforcement. Periodically, as happened recently, ICE raids a plant and arrests hundreds of undocumented aliens working there. Gee, how does it happen that those large numbers were at the same workplace? Did management not know they were there? Perhaps such a raid seems to harm the companies because they lose a workforce, but instead they aid the owners. The workers are soon replaced, and a message is sent out to them and to others in different companies: Don’t draw attention to yourselves by unionizing or complaining about wages or unsafe and other working conditions. Such attention can lead to your deportation. Until such raids have serious consequences for the companies and management, the raids just nurture low wages and dangerous work environments.

The number of unionized private sector jobs is about one-fifth of what it once was, well under ten percent. The consequences for the country have been immense. A study concluded that a major cause of our rising income inequality has been the decline of unions.  See https://economix.blogs.nytimes.com/2011/08/04/labors-decline-and-wage-inequality/. It is not just that the wages in what were unionized jobs have not kept pace, but also that when unions were strong, companies often increased wages to stave off unionization efforts.

          There has also been a political fallout. Who you hang out with affects your views. Politicians no longer seek out union support as they once did. They hang out with corporate and other business leaders. That is where the money is, and money increasingly controls our political process. In the 2016 election cycle, business outspent labor by sixteen to one, with businesses spending $3 billion on lobbying and unions spending $48 million.

          Unions in the past worked for laws that helped all working people, but now they have little effect. This is part of the reason that, unlike in other developed countries, we do not have guaranteed paid parental leave, paid vacations or sick days, and the minimum wage as a percentage of the median wage is lower than in other developed countries. Instead, we have seen the rise of unpaid interns in the work force and workers forced into arbitration systems that favor corporations. We have also seen a major shift to temporary and contract workers. Google, for example, has more temporary and contract workers than full-time employees.

            This is not to suggest that everything unions might advocate for is necessarily a good thing, but as the union voice is increasingly drowned out by the big money coming from a relative handful of rich people something important has been lost in our country. (If you want to be depressed, read Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right by Jane Mayer.)Unions may still be in the dining room, but they are at the kids table and seldom heard.

On Labor Day we can have picnics and hit the back-to-school sales, but the day was meant to be a commemoration of organized labor. We have politicians who proclaim a concern for blue collar workers, but our present political system is rigged so that labor can be largely ignored, and corporations can be served.  Without a strong labor movement, the country is not as well off as it ought to be. Let’s put Labor back into Labor Day.

Put Labor Back into Labor Day (continued)

          Labor Day was meant to honor the American labor movement, but do we do that on the holiday or at any other time? Aren’t we much more likely to denigrate the laboring class or organized labor? How often do you praise unions? When you pass a highway road crew, do you spot workers seemingly idling and think, “Working hard or hardly working?”

          That was often my reaction at least until I got a job in a cemetery in the summer after I graduated from high school. My first assignment was to rake a grassy plot that had been recently cut. I thought that this would be easy, even pleasurable. I was young and fit, and I loved the smell of freshly mown grass. But after quarter hour my arms were sore. I took a few minutes break. After another fifteen minutes, my shoulders started to burn. I took another break. After a total of ninety minutes, every part of my body seemed jelly-like. How could all those people do something like this for eight hours day after day? Luckily, a regularly scheduled coffee break at nine interceded, and I was given a new assignment at its conclusion.

          During that summer, I worked alongside the full-time employees, and I saw how hard they worked and how often they took pride in what they accomplished. I had a new-found respect for those who labored. This education continued in the summers of my college years when I worked in a factory. I learned how hard it was to do repetitive tasks on my feet for a workday, but again I learned that the workers cared about the product. If I did not assemble something correctly or made some other mistake, I was quickly informed on how to do the task properly. These were boom times, and we worked nine-and-a-half hour days during the week and a half-day on Saturdays. The full-time workers did not complain but were happy for the extra money that they could make. I bitched a lot, got regularly drunk in what was left of the evening after scarfing down a meal, and then dragged myself out of bed at 5:45 A.M. for the start of another nine-and-a-half hours.

          My grandfather was the member of a union. So were my fellow factory workers. (As a summer worker, I was not asked to join.) Since I barely spoke with my grandfather, I never heard from him what he thought of his union, but that he joined the strike and stayed out for its duration, does indicate something. Mostly I heard about the union from my grandfather’s son, and this talk was not so much about the union and wages, but about the union and working conditions. My father told me stories about how management would order workers to do unnecessarily dangerous things that the union would prevent and that the union forced the company to reduce the risks of silicosis, measures that would not have occurred without union bargaining and pressures.

          I did hear the union workers at the factory talk about their union. This came up frequently at the lunch break and before and after work (I carpooled with workers to get to the factory a few miles out of town) because bargaining was going on with a strike date looming in the middle of summer. (The potential strike presented an existential dilemma for me. My family supported union causes, and I did know Solidarity Forever. On the other hand, I was dating one of the management’s daughters. I was saved from resolving the conflict between principles and sex when at the last minute the company and the union signed a new contract. Years later, I was represented by a union when I was an attorney for the New York City Legal Aid Society, and strikes again posed dilemmas for me, but that is a story for another time.)

          The factory workers were not dissatisfied with their working conditions, but they saw the union as essential for getting fair wages. Without the collective action of a union, they knew that they would get paid less and simply have no alternative but to accept whatever the company offered to pay them. They knew that if the company were to make the choice of more money for the owners and higher wages for the worker, the result would not be more money in their paychecks.

          Those days, however, are now distant. Unions have much less authority than they did back then and in other countries now. Unions have been denigrated since the beginning of the organized labor movement, but that denigration took especial hold over the last forty or fifty years. How often have you heard something positive about unions? On the other hand, you probably did hear about featherbedding and union corruption. Of course, many unions have had a corruption problem, but if you pay the least little attention, you know that many corporations have had and continue to have corruption issues and the equivalent of management featherbedding in the form of lavish pay and perks. Corporate corruption, however, does not mean we think that all corporations are bad for the country. In contrast, a corrupt union bleeds over to other unions. A corrupt union tends to make us think that unionization is generally a bad thing.

(concluded on Labor Day)

Put Labor Back into Labor Day

Labor Day is not a lonely and forgotten holiday. It is celebrated as the end of summer and the beginning of autumn. The schoolyear begins as does the football season. But how often do we commemorate the supposed purpose of the holiday, the labor movement? At least on most Labor Days, however, I think about a laboring man, my grandfather.

 I was raised in a working-class family. My parents, sister, brother, and I lived on the ground floor of a two-story house. My father’s parents lived upstairs. While I talked with my grandmother some, I spent almost no time with my grandfather, who just seemed silent with us most of the time. I have no idea how he ended up in Wisconsin. He was born in Pennsylvania to an immigrant family, most of whom migrated back to Germany. I felt like I knew only two things about him: He played skat, a card game, at a local tavern on some weekends and evenings, and he worked at the Kohler Company, the firm that makes toilets and sinks and bathtubs. Other than that he was some sort of laborer in the factory, I didn’t know what he did.

I do know that he started at Kohler in 1917. I am confident of this fact because I now have my grandfather’s Hamilton pocket watch, which was awarded him by his employer on his twenty-fifth anniversary of working for the company. His initials are inscribed on the back. A cover opens revealing his name and further inscriptions: “1917 SERVICE 1942” and “KOHLER OF KOHLER”.  A goldish chain is attached to the watch and to a medallion, which is inscribed on the back with my grandfather’s name and the obverse has a relief of a factory worker, “Kohler” boldly written across the medallion, with a slogan on one side: “He Who Toils Here Hath Set His Mark.” (When I used to wear three-piece suits to court, I would carry this watch and medallion in my vest pockets. The watch still works beautifully.)

My grandfather continued working at Kohler for another dozen years, but then a strike came. Kohler was by far the largest employer in the area, and the walkout, with my grandfather joining the strikers, had a huge effect on the town. As the strike went on and union benefits lessened, families faced tough times. Some strikers sought other work, but there was not much to be had. A few decided to return to work. Loyalties were tested. In a town with a tavern culture, some regulars found they were no longer welcome at their favorite bar. Sporadic acts of violence occurred. I was only eight or nine when it began, and the kids seldom mentioned it. Child friendships did not follow the fault lines fissuring from the strike, but at home I learned the epithet “Scab” and the words to Solidarity Forever.

And I saw the effect on my grandfather. He was now home at times I had never seen before. And he looked lost, bewildered. Part of his life, his identity, had been stripped. I have no idea what kind of economic strain was weighing on my grandparents, and from the sanctuary of childhood, I never thought about it, or I never thought about it until a few years after the strike started. I was with some friends, and we wandered into a park behind our school’s playground. And there was my grandfather raking leaves. Until then, I was not aware that he worked for the city’s Parks Department. He saw me; I saw him. We made no signs of recognition. He looked embarrassed. Raking leaves was the kind of demeaning make-work projects of the Depression. It was akin to a handout. It was not the real work of making something as was done at the Kohler Company. Or perhaps, my grandfather was fine, and only I was embarrassed for what he now had to do. I know that I did not want my friends to know that the lonely-looking figure under the trees was my grandfather. Perhaps my grandfather was truly embarrassed or perhaps he recognized that I was or perhaps both, but we exchanged no greetings.

The strike lasted six years, then, and I still think today, the longest strike in the country’s history. The National Labor Relations Board eventually found that Kohler had not bargained with the union in good faith, and that set off another round of contentiousness about what back pay was owed the strikers. The year the strike ended my grandfather died.

My sister recently told me something I did not know–that my grandfather waited by his upstairs window watching for me to come home from school. He knew that I was studying German, a language that he considered his native tongue (he also spoke English, of course, and Lithuanian), and he was proud of my German studies. Although I would try to exchange a few words of German with my grandmother, I never said a word of German to him. I am sorry for that, and I am sorry that I did not go up to him in that park. We did not hug much in my family, but I wish that I had given him one. He may no longer have had the job that had been part of his identity for forty years, but work was still important to him, and the many others like him. I try to remember that, especially on Labor Day.

(continued August 30)

Snippets

Who knew that Tarzan lived in Wisconsin?

Parking increasingly requires us to go to one of those machines and buy a slip with a time printed on it to put on the car’s dashboard to show how long the car can be parked in that spot. With a parking meter, there was always a chance that time remained on the meter, and we might need fewer coins than we thought or, perhaps, none. It was not a huge joy when that happened, but it always made me feel at least a little bit lucky. But that happy moment is now gone. Or does anyone, when leaving a parking place, give the slip with time remaining on it to someone pulling into a spot on that block?

Will a new generation know what “Rita the Meter Maid” is about?

I had a heart incident a decade ago. In the days right before I landed in the emergency room, the strain of ordinary exertion must have shown, because, for the first time ever and to my dismay, a young woman offered me her seat on the subway. Luckily, she was not that good looking.

At this time of year, I remember the country song lyrics—“There are two things money can’t buy: true love and homegrown tomatoes.”

Why do we say something is “affordable”?  Isn’t anything bought, leased, rented, or bartered “affordable” for the one who got it?  And isn’t almost anything, no matter how “affordable,” not affordable for many?

 I recently met a couple.  He was six feet ten.  She was just shy of five feet.  What questions would you have liked to ask?

The only time I have been in one was in Baltimore while on a tour of baseball stadiums as a guest of a minister friend. He insisted he wanted to go to his first “Hooters.”

All those TV sports shows ought to interview college athletes about their favorite professors and then produce clips of those teachers in the classrooms and interacting with the athletes outside of classes.

I was on a park bench. Off to my left a man was ranting. Police were around the apparently mentally ill person dealing with him patiently. On the next park bench to my right were people who begged in the park and seemed to know the ranter. One of the them looked at the police, saw a blonde woman, and said, “Look at her. She doesn’t look like a cop. Why did she become a cop? She should have been, uh, uh, uh, a chemist, or something.”

I hope it was for a law firm, but it did not say so. The billboard read: “Medical malpractice is all we do.”

It was a remarkable sight, the man wearing sweatpants held up by suspenders.

“No one on earth—none that I had ever seen—is more polite than a person at a gun show: more eager to smile, more accommodating, less likely to step on your toe.” Paul Theroux, Deep South.