In modern society, we have devised mechanisms to help us manage risk. Health insurance, for example, is a risk management system for health care costs that uses small payments, pooled from a large community, to cover those members who happen to become sick. The complications with risk management pools often do not relate to the idea of insuring people against risk. After all government itself is, in some ways, the same idea. Rather the complications arise from trying to decide who is included in the risk, in the payouts, and how the system is funded.

The Washington, D.C. city council recently passed a risk management pool, similar to health insurance, to provide family leave to district workers. There are significant benefits to workers from this system but there are also some drawbacks, which critics say will harm employers and may even harm the types of workers that the policy is designed to benefit the most.

The D.C. Universal Paid Leave Amendment Act would be a significant increase in the benefits due to D.C. employees. It will be particularly important to younger, female employees who are statistically the most likely to want to take family leave time. However it does impose significant costs on employers and other workers, and the balance between those competing interests may need to be adjusted. Now that the bill has passed the D.C. City Council, it will need to be signed by Mayor Muriel Bowser and make it through a 30-day congressional review.

D.C. Paid Leave and How It Works 

Take a look at this report from PBS that aired last year that explains some of the benefits of family leave and how it works in other countries. It is expensive to provide this benefit to employees but it can also keep employees in the workplace.

In the United States, there is no national policy for paid family leave. Federal law provides for unpaid leave, but only for companies with over 50 employees. And only to full-time workers. Only 12 percent of Americans are offered any kind of paid leave by their employers.

The D.C. Universal Paid Leave Amendment Act is the most generous family leave policy in the country, extending benefits by both duration and payout beyond family leave policies in other states. California and New Jersey, for example, only provide six weeks of leave and up to 60 percent of pay. The D.C. plan provides for eight weeks at up to 90 percent of pay. The program would guarantee six weeks of leave to care for a sick family member as well as two weeks of paid sick leave and eight weeks for new parents. The structure of the payouts is also progressive, meaning that lower wage workers will benefit more from the plan. The first $46,000 in wages are replaced at the 90 percent rate, but after that reimbursement is only 50 percent. The benefit payments are capped at $1,000 per week, and those benefits are taxed.

The program is only for private employees, not district or federal workers, and will be funded by an increase in payroll taxes on employers. D.C. already has a high tax rate, one of the highest in the region, and this law would be an increase of 0.62 percent. It does not sound like a large increase but many businesses operate on thin margins, and an almost 1 percent increase could be a significant burden. The tax increase would create a $250 million a year fund to pay out benefits. But estimates suggest that a one-time cost of $80 million would be needed for the technical administration of the program alone. To many critics, this high proportion of funding going to administration is unacceptable.

Another problem with the proposed plan is the beneficiaries. The new tax will only apply to employers who are within the district. But the benefits will be paid out to workers regardless of whether they live in the district or in surrounding states. Estimates suggest that about 65 percent of the benefits would be paid to commuters living in Maryland and Virginia, a facet of the plan that has drawn criticism from city council members and the local Chamber of Commerce.

Is Family Leave A Good Idea? 

This video explains some of the pros and cons of the new family leave act.

As the video explains there are several different angles to consider. The first issue is the incentives that it creates for employers. The employees most likely to take advantage of this policy are young women since they are the most likely to care for a newborn or an ailing family member. Under a structure that requires employers to pay for only the leave taken by their own employees, as was proposed in one version of this legislation, this can create an incentive to not hire young female workers. But because employers are paying into a common fund for the benefits, rather than providing the benefits directly, this particular incentive is reduced. The employer does not increase their risk of losing money to paid leave when they hire an employee who is likely to take that leave. That risk is spread out over all of the employers in the pool.

The fear that an employer may have to pay for, on its own and not through a fund, an employee’s leave only to have that employee not return to work is also eliminated. If an employee does not return to work after his or her leave, that would be a cost to the business, but the individual employer isn’t on the hook for the cost of the benefits that were collected. All the employers share that cost so that for each individual company it is drastically reduced.

The main problem that most have with the bill is that it may encourage employers to cut back on workers in general or move their business out of Washington in order to save money. This is a very real concern since payroll expenditures are often a large part of a company’s budget and one of the elements an employer can most easily control. A company may try to cut staff so that it owes less in taxes, even if that would make it less productive. Other family leave programs in other states have not led to that result, but this program is untested. The question of whether the benefit to all workers is worth a general hiring freeze or a reduction in the labor force can’t be answered until we know how many workers it will affect.

Additionally, the D.C. leave package is so generous it may do too much to allow workers to stay home. A worker who gets up to 90 percent of their pay doesn’t feel nearly as much pressure as one who is only receiving 60 percent, or none, of their paycheck. Although most people support some kind of paid family leave many might want a policy that encourages employees to come back as soon as they can. This could be accomplished by reducing the size of benefits paid out in subsequent weeks. But part of the rationale for the law is not only to relieve families in an emergency, but also provide work-life balance for new parents. The program is by its very nature supposed to incentivize workers to take time when they need to.

Family leave also benefits employers. The ability to take family leave can encourage workers to choose one specific employer over another. Therefore a system that guarantees paid leave to all private sector employees in a given job market levels the playing field for businesses that might not be able to offer this benefit on their own. It also encourages workers to take leave when they have a child or an emergency, rather than quit work altogether if they know they will need several weeks of time off. This keeps talented workers in the job pool and reduces the costs of training new employees.

Conclusion 

Ultimately, support for family leave, however it is organized, comes down to who we as a society want to invest in and how we are going to finance those investments. Most Americans, 82 percent, believe that there should be some sort of paid family leave for workers. Both to cover parental leave and also for workers who become ill or have a loved one who becomes ill. But devising a system that is able to finance this leave presents many challenges. In order to provide the benefit, employers, other workers, or consumers need to shoulder some of the burden.

The D.C. bill places the burden for this on employers, who may end up passing on some of the costs to consumers and to their employees. But for the workers who have a family emergency or the arrival of a new child, these benefits are critically important. Here in the United States, these family leave provisions are still in their experimental phase, and this one is more generous than the others, so it may be necessary to adjust the balance further. There is also a strong argument to be made for finding an alternate way to administer the benefits that is more cost effective, which could help lower the tax cost for employers.

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Family Leave In D.C.: Are the Costs Worth the Benefits? appeared first on Law Street.

Americans all have different relationships to food. I didn’t know that you could buy applesauce in a jar until I went to college. I was aware that you could get soup in a can but I had never experienced it personally. My mother and grandmother made these things from scratch. So there were no food labels indicating the nutritional value on any of these items, but following Michael Pollan’s advice to not eat anything that my grandmother would not have recognized as food, the nutritional value wasn’t something we worried about calculating with numbers. It just felt wholesome.

However, not everyone has the luxury of making food from scratch. Americans increasingly rely on processed foods to replace or supplement home-cooked meals. These foods are convenient and often a cheaper alternative. In some cases, they are the only option, since many Americans live in “food deserts.” A food desert is a location where grocery stores that carry fresh produce are more than a mile away and residents don’t have access to them via a car or public transportation. Neighborhoods like this tend to have grocery stores that only have processed food options. A lot of food deserts are in urban areas, but there are also some in rural communities as well, because if the nearest store where you can buy a tomato is five miles away and you lose or don’t have access to your car, you have a very long walk to purchase a tomato.

You can actually go to the U.S. Department of Agriculture website and take a look at food deserts around the country.

Since Americans are either being forced–through economic necessity or location–or choose to consume more processed foods, efforts have been made to make the labeling on these foods easier for consumers to understand. The strategy adopted by the White House, as part of Michelle Obama’s efforts to combat obesity, has been to modify our existing food labeling. But there may be other ways to label our food that better informs consumers and encourage them to make different choices.

Facts Up Front Food Labels

Our current food labeling method is called the “facts up front” system, which utilizes a black-and-white label on the back of the product, with some key facts also displayed on the front of the product. In the following video, Allison Aubrey of NPR explains some of the changes that were made to the facts up front system that will hopefully make it more user-friendly for consumers.

The two main changes to the labeling system, which are designed to promote healthier choices, are the modifications in serving size and the “added sugar” reference on the label. With the previous labeling system, it was not always clear to consumers that what they consider a “serving” and what a “serving” actually is for the purposes of calculating the calories are rarely the same thing. For example, a 24-ounce bottle of coke, which many adults would drink with their meal and think of as a “serving” because it was in one unit, might actually be 2.5 servings. So the number of calories listed was not the number calories in the bottle, which would be much higher than what people were actually consuming.

The other major modification designed to assist consumers is the “added sugar” valuation. Most people don’t realize that sugar is put into nearly all processed foods, even ones that aren’t sweet. Salad dressing, for example, often has sugar added to it. The added sugar value is designed to alert consumers to the hidden sugars in their foods, which are a huge driver for obesity and other health risks.

These changes to the food labels may, in fact, help consumers make better choices. A majority of Americans do look at food labels when they are deciding whether to purchase a food item, so making sure that they are better able to understand the number of calories and nutritional value of the food they are about to consume may help them avoid (at least most of the time) foods that are unwise to eat. If sales for a particular food decline because consumers are changing their behavior, that may even encourage manufacturers to alter the amount of sugar and fat they use to attract more health-conscious consumers.

But there is another way that we can label our food that might be even more beneficial to the consumer.

Traffic Light Labeling

This video explains some of the studies conducted that compare the facts up front food labeling system with an alternative option known as the “traffic light” system. As the name suggests, the traffic light labeling system uses red, green, and yellow/orange to indicate that a nutrient level is healthy or unhealthy. For example, a food that has low fat and low fiber would have a green circle that says low fat (which is a good thing) and a red circle that says low fiber (which would be bad). Glancing at it quickly, if you saw a string of red circles on the label you would know that this food should be eaten in moderation or avoided completely. In contrast, a food with a lot of green circles is something that you can eat more frequently.

Here is the good news: both kinds of food labels will be helpful if you are trying to decide between two different kinds of products. If your choice is between a bag of Fritos and a bag of sourdough pretzels then either the facts up front type of labeling or the traffic light labeling is going to help you know which choice is healthier. However, when you are looking at a product by itself and trying to decide if it is a good choice the traffic light system is much better at helping you make an informed decision.

The traffic light system may be of more use to people as they actually shop than facts up front food labels. It depends on how people make their purchasing decisions. If consumers are going to the store and holding two types of bread in front of them to try to figure out which one is healthier, then the facts up front label is just fine. But if they are reaching for a salad dressing on its own, not comparison shopping, a facts up front label may not alert them to the fact that it is a bad choice, whereas a traffic light label with a red warning circle that says “high sugar” may be more effective at steering consumers away from that product. In fact, there is evidence to suggest that a prevalence of red labels will lead to a reduction in purchases, which is why food manufacturers in Europe are resistant to the implementation of the traffic light label system. Its use in the U.K. is voluntary for manufacturers.

The facts up front system actually leads consumers to make the wrong estimates. It encourages people to think there are more good nutrients in a product than there actually are and fewer bad nutrients. Overall, the traffic light label was easier for consumers to understand, since it can be confusing to think about the recommended daily value of a nutrient and to make the necessary calculation. But a red warning on a package is immediately perceived as “don’t eat this!”

It’s unclear how the traffic light system might affect consumers and manufacturers but the system has been used in the U.K. to try to combat label confusion. Ideally, any labeling system that we use should tell consumers as clearly as possible which products are healthy and/or exactly how unhealthy for you a particular junk food is. And hopefully, that would reduce the amount of particularly unhealthy junk food people consume. But a good labeling system will also influence manufacturer behavior and the traffic light system may be even better at that than a facts up front label. Manufacturers may not want to put a series of red circles on their products, increasing the perception that they are unhealthy, so they might modify their product to get the label reduced from red to yellow.

Conclusion

In a perfect environment, the food labeling system could be complicated and consumers would have the time needed to analyze each product for its relative health merits. As a result, they would wisely avoid the foods they should. But we do not live in the perfect environment. Food shopping is something that many consumers engage in almost as muscle memory, relying heavily on brand loyalty and a general feeling that a product is wholesome. Even when consumers look at food labels, which most of them do, they may not understand them. They know that a bag of potato chips is bad, especially when comparing it to a rice cake, but they may not understand just how bad.

A traffic light labeling system should be explored to figure out if it does a better job accomplishing the goals of a labeling system, which are to inform consumers, modify their behavior where possible, and encourage manufacturers to make their products healthier in an attempt to capture market share. We put warning labels on dangerous products like cigarettes, but our food labeling system does not treat sugar with the same level of danger. Given the health crisis that overconsumption of these products has helped to create, perhaps we should.

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

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When most people think about rape and sexual violence they imagine a situation where a woman is attacked by a man she does not know. We usually do not think of college campuses, particularly dating on college campuses, as a place where rape is likely to occur. Yet college campuses are a dangerous place for both female and male students and the rate of rape and sexual violence is startling. During their college years, one in five women are sexually assaulted or raped. And it is not just female students who are victimized, as 17 percent of student victims are male.

Rapes on college campuses do not fit our mental model for how rape occurs, which makes it difficult to combat and makes victims reticent to report crimes. Among college women, nine out of 10 knew their rapist. Rape is particularly likely for freshmen and sophomores, especially cases of incapacitated rape, which happens to 15 percent of female freshmen.

Reporting Problems

Despite high rates of violence, only 20 percent of victims report the crime to the police. There are multiple reasons why victims may not choose to go to the police. Oftentimes the victim and the rapist are in the same social circle and victims fear social reprisal for reporting. They may also fear that their claims will not be taken seriously by the police or school officials and that they may be subject to disciplinary action or criminal prosecution themselves. Remember, many of these victims have been drinking underage and/or using drugs prior to their rape.

Victims may also have been conditioned to think that their rape was not a “real” rape. Their rapist is someone that they know, not a stranger grabbing them in a dark alley. Force may not have been used since often the victim was incapacitated at the time. Our culture also offers multiple excuses for rapists and puts blame on victims who were intoxicated or otherwise “irresponsible.” These feelings of guilt on the part of the victim are internalized and expressed by not reporting the crime because it isn’t worth dealing with.

In an effort to combat the problem of rape on campus, many colleges and universities have adopted affirmative consent practices. The use of affirmative consent to change cultural attitudes about rape and/or to change rules on how to prosecute sexual violence has caused a great deal of controversy and should be more thoroughly examined.

What Is Affirmative Consent?

For a full background on rape culture and affirmative consent, you can read this article. But the video below, featuring journalism icon Gwen Ifill, also provides an excellent overview of the concept of affirmative consent and some of the push-back on adopting it as a standard.

So let’s unpack some of the arguments surrounding affirmative consent. Jaclyn Friedman, the affirmative consent advocate, explains that the “no-means-no” standard (where consent is presumed unless it is expressly denied) doesn’t deal well with some kinds of sexual assault. In particular, it does not provide adequate protection from abuse for victims who may freeze up and feel too unsafe to deny consent. This is actually a common reaction, particularly for victims who are sexually inexperienced, incapacitated, or conditioned to not resist. When the burden is placed on all participants to make sure that everyone is consenting, it eliminates some of these dangers. It also would eliminate a situation where one party feels they were victimized and the other party honestly does not feel they did anything wrong because they thought silence was consent.

In a culture where silence indicates a lack of consent, not evidence of it, it becomes much more difficult for this to happen. This could be especially helpful for younger college students, or the sexually inexperienced, who are in fact more likely to be assaulted than their older student peers.

Shikha Dalmia takes a different view on the issue because of how affirmative consent changes the burden of proof and, in her view, the presumption of innocence. Her main objection is not that we may want to adopt this as a cultural model for how consent works but that we might use affirmative consent as a legal framework. As she states, consent is already required, under the “no-means-no” standard. But we presume that there was consent until the non-initiator indicates otherwise. This presumption is necessary, in Dalmia’s view, to maintain a presumption of innocence for those accused of rape.

We have to take that concern seriously because the presumption that everyone is innocent until proven guilty is a cornerstone of our judicial system. But changing the presumption of consent does not necessarily lead to a change in the burden of proof/presumption of innocence.

In a formal rape trial, the prosecution currently needs to show that the victim did not give consent, but that is not the same as saying we assume they are lying. In some instances where the defendant is asserting impotence or intoxication as a defense against rape they are already required to prove that element of the case, yet it does not change the underlying presumption of their innocence. Requiring one party to prove an element of the charge does not mean that we assume that party is being deceptive.

We are placing the burden of proof on the prosecution to prove a lack of consent. And they offer evidence for this such as the actions of the victim and defendant, including but not limited to what was said. But if consent was not presumed that wouldn’t change the fact that we are still asking the prosecution to prove its case. Prosecutors would still have to contend with any evidence the defense offers to show that there was in fact consent, and they would still be offering their own evidence to show that nothing the victim did amounted to consent. It would change the understanding of what all parties should have understood at the time of the incident–that they should have obtained consent–not be a commentary on what the defendant did or did not do.

A Practical Solution?

The second problem is how affirmative consent actually works in practice. Is it really something that will “work” on campuses, or in the general population, given our cultural scripts for how men and women behave sexually?

There are impracticalities to the use of affirmative consent but not for the reasons that detractors might suggest. The impracticality is not in asking for consent during a sexual encounter. The main obstacle is changing the cultural norm so that not getting that consent is a problem.

But hasn’t that been the case in all movements for increased social justice? Sharing a water fountain between blacks and whites was never impractical on its face, in fact, it is even more practical to have one water fountain. Just as affirmative consent as a model has the potential to reduce confusion and assault. The impracticality is from an unwillingness to implement a new system that changes social norms, gender norms in this case, not with the new norms themselves. There may not be enough evidence of how effective affirmative consent is on college campuses to draw a conclusion about its implementation. But there is some anecdotal evidence, suggested here, that even skeptics can incorporate affirmative consent into their sexual behavior.

The video below highlights both the concern about the practicality of the system and the appropriateness of how affirmative consent policies have been added to most college campuses. Many of these institutions adopted an affirmative consent model because the Obama administration, as part of the “It’s On Us” program, made continued federal funding contingent upon colleges dealing meaningfully with sexual assault. In the video, the panel discusses the issue in the state of California.

Some of these objections are based on a misunderstanding, sometimes a deliberately created misunderstanding, of affirmative consent. It certainly does not require written consent, and in fact, does not require even verbal consent. Obviously, a written document would be your strongest piece of evidence in a case trying to show you had obtained consent. But that doesn’t mean that it is the only way to do so, and this line of reasoning conflates the idea of how affirmative consent would work in practice in most sexual encounters with how affirmative consent might affect a legal proceeding.

What Affirmative Consent Would Change

Either at the school or the state level, a legal proceeding is only changed by explicit amendments to the burden of proof or the presumption of innocence. Affirmative consent does not do that. Our current prosecutorial system functions perfectly well, even when consent is at issue, without a document signed by the victim saying they didn’t consent. There is no reason to think that a written contract would be required simply by asking an initiator to make sure their sexual activity was welcome.

In fact, if you look at one example definition of affirmative consent used by a university, specifically the State University of New York, it explicitly includes actions as one method to show consent. The key is that the words or actions create a “clear permission” regarding willingness.

But there is still discomfort with the idea that the federal government can influence policy at colleges around the country by threatening to withhold funding. Some people think it is inappropriate to try to strong arm a college in this way.

And yet the government already engages in this behavior all the time, in other contexts, to promote fair treatment. One example is the area of special education. While I was at William and Mary I worked in our clinic for children with special needs, ensuring that they received FAPE–a free and appropriate public education. In exchange for federal funding, the state of Virginia agreed to follow certain guidelines for how they were required to handle children with special needs. Before the implementation of the law that allowed this, the Individuals with Disabilities Education Act, children with special needs were often shoved into a corner and ignored.

Most people would not object to this requirement because they realize that sometimes you need practical reasons to encourage socially just behavior. As much as we would like to think otherwise, people do not always behave morally on their own, state governments and colleges included. The federal government has consistently used the power of the purse to encourage behavior to support marginalized groups. The fact that they are doing so now, to protect students from sexual assault, should not matter. A prudish or squeamish reaction to the involvement of the government in sexual matters focuses on the sex and not on the violence. Rape that occurs when someone is incapacitated, knows the attacker, was drinking, etc. is just as much an act of violence as a stranger jumping a victim on the street. And there is no more quintessentially appropriate role for government than the prevention of violence against its citizens.

Conclusion

We need to deal with rape as it actually happens in reality, rather than dealing with rape as it is portrayed in our culture. A rapist is not always, or even usually, a stranger. It does not always happen with physical violence; often sexual assault happens in a wider social context. And because sexual assault is inextricably linked with sexual conduct in general, we have to address our sexual culture if we want to address sexual assault.

Affirmative consent may not be a panacea for the issue of sexual assault, even just on college campuses. The use of alcohol and drugs, the tight-knit social communities where these assaults occur, and the relative sexual immaturity of the age group all make sexual assault more complicated on a college campus. But the discussion of whether we want to adopt this model, either in a social or in a judicial context, has opened the door for people to grapple with what consent really means. That discussion is a valuable one for us to be having.

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post College Campuses and the Role of Affirmative Consent appeared first on Law Street.

Throughout most of our history, rape was a property crime.

Today we do not, in the modern United States at least, think of a woman’s sexuality as a financial asset. But that is a recent phenomenon. For most of our history, rape was not treated the same way as other violent assaults because it wasn’t just a violent assault, it was also a crime against property.

You can see this view–of a woman’s sexuality belonging to her father and later her husband–in laws concerning rape and sexual assault. It was even possible for a father to sue a man who had consensual sex with his daughter because he had lost the value of his daughter. Based on this view, value is lost in terms of her work if she became pregnant and was no longer able to earn wages, or in terms of a future wife for someone else because of this stain on her character. Men could not be held accountable for raping their wives because a wife was a man’s property and consent to sex–at any time of his choosing–was part of the arrangement.

Lest you think that these laws are ancient examples of a culture that no longer bears relation to our current policies on rape, spousal rape was not made illegal in all fifty states until 1993, where it still may carry a less severe sentence than other rape offenses. The tort of seduction was technically on the books in North Carolina in 2003.

This context is important given our current cultural attitudes toward sexual assault. To understand this culture and how it can be amended, we need to look more deeply at the historical understandings of rape and consent.

Force Means No

The framework for defining rape underpins our understanding of who is required to prove consent or non-consent. The Hebrew Scriptures, which established longstanding cultural norms that helped form a basis for what was morally and legally acceptable in early America, make a distinction between a woman who was raped within a city and one who was raped outside of the city limits. The first woman was stoned to death and the second considered blameless (assuming she was a virgin). This distinction is based on the idea that it was the woman’s responsibility to cry out for help and show that she was non-consenting. A woman who was raped in the city obviously had not screamed because if she had someone would have come to her rescue and stopped the rape. The woman outside the city had no one to rescue her so she could not be blamed for being victimized.

This brutal logic, which is completely inconsistent with how we know some victims of rape react to an attack, was continued in the American legal system when our laws on rape were formulated. Rape was defined as a having a male perpetrator and a female victim and involving sexual penetration and a lack of consent. But it was again the woman’s responsibility to prove that she had not consented and the way that this was demonstrated was through her resistance. She was only actually raped if she had attempted to fight off her attacker. Different jurisdictions required different levels of force to show a true lack of consent. For example, fighting off an assailant to your utmost ability or even up to the point where the choice was either to submit to being raped or to being killed. Indeed, the cultural significance of chastity as a virtue that the female was expected to guard was so profound that many female Christian saints are saints at least in part because they chose to die rather than be raped or be a bride to anyone but Christ.

Potential canonization aside, it was consistently the responsibility of the woman alleging that she was the victim of a rape to prove that she had fought off her attacker in order to show that she had not consented. If she could not show that she had sufficiently resisted, she was deemed to not have been raped. Her chastity was someone else’s property, either her father’s or her husband’s/future husband’s, so it was always understood that someone, other than her, had the right to her sexuality. The assailant had assumed that he had the right to use her sexually and was only a rapist if she acted in such a way that a reasonable man would have known that she did not belong to him. Her failure to communicate that fact, that she was the property of some other man, was a sign that she had in fact consented. Therefore the rape was not his moral failing in stealing another man’s property but her moral failing in not protecting that property from being stolen.

Culture Wars

We can see the effects of this ideology in how we treat rape victims today. Although we don’t necessarily require evidence of forceful resistance, it is considered helpful in prosecuting a rape case. Rape shield laws may have eliminated the most egregious examples of slut-shaming victims, but an innocent or even virginal victim is certainly what the prosecution could hope for if they were trying to design their most favorable case. One of the first questions that will be asked of the victim is “did you say no?” In other words “what did YOU do to prevent this from happening to you?” The burden is still often legally and almost always culturally on the victim to show that they did not consent.

There is an alternative approach that has been gaining traction on college campuses and elsewhere known as the concept of “affirmative consent.” Take a look at the video below, which elucidates the differences between the “no versus no” approach compared to affirmative consent, which is often described as “yes means yes.”

In this video, Susan Patton and Rush Limbaugh both represent examples of rape culture. The contrast between the views of Savannah Badlich, the advocate of affirmative consent, and Patton, who is against the idea, could not be starker. To Badlich, consent is an integral part of what makes sex, sex. If there isn’t consent then whatever happened to you, whether most people would have enjoyed it or indeed whether or not you orgasmed, was rape. It is your consent that is the foundation of a healthy sexual experience, not the types of physical actions involved. In contrast, Patton expressed the view that good sex is good sex and consent seems to not play a role in whether it was good sex, or even whether it should be defined as sex at all. The only thing that could indicate if something is an assault versus a sexual encounter is whatever physical evidence exists, because otherwise, the distinction is based only on the assertions of each individual. Again we are back to evidence of force.

What is “Rape Culture”?

Rape culture refers to a culture in which sexuality and violence are linked together and normalized. It perpetuates the idea that male sexuality is based on the use of violence against women to subdue them to take a sexual experience, as well as the idea that female sexuality is the effort to resist or invite male sexuality under certain circumstances. It overgeneralizes gender roles in sexuality, demeans men by promoting their only healthy sexuality as predatory, and also demeans women by considering them objects without any positive sexuality at all.

According to this school of thought, the “no means no” paradigm fits in perfectly with rape culture because it paints men as being predators who are constantly looking for a weak member of the herd to take advantage of sexually, while also teaching women that they need to be better than the rest of the herd at fending off attacks, by clearly saying no, to survive. If they can’t do that, because they were drinking or not wearing proper clothing, then the attack was their fault.

“Yes Means Yes”

Affirmative consent works differently. Instead of assuming that you can touch someone until they prove otherwise, an affirmative consent culture assumes that you may not touch someone until you are invited to do so. This would be a shocking idea to some who assume that gamesmanship and predation are the cornerstones of male sexuality and the perks of power, but it works out better for the majority of men and women, who would prefer and who should demand equality in sex.

This video gives a brief highlight of some of the issues that are brought up when affirmative consent is discussed and the difficulties that can still arise even with affirmative consent as a model.

Evaluating Criticism of Affirmative Consent

The arguments are important so let’s unpack some of the key ones in more detail. The first objection, expressed in both videos, is how exactly do you show consent? Whenever the affirmative consent approach comes up, one of the first arguments is that it is unenforceable because no one is going to stop sexual activity to get written consent, which is the only way to really prove that a person consented. We still end up in a “he said, she said” situation, which is exactly where we are now, or a world where the government is printing out sex contracts.

The idea that affirmative consent will by necessity lead to written contracts for sex is a logical fallacy that opponents to affirmative consent use to make the proposition seem ridiculous. Currently, we require the victim to prove non-consent. Often the victim is asked if they gave a verbal no or if they said they did not want the contact. The victim is never asked: did you put the fact that you didn’t want to be touched in writing and have your assailant read it? The idea that a written explanation of non-consent would be the only way we would take it seriously is absurd, so it would be equally absurd to assume that requiring proof of consent would necessitate written documentation. Advocates for affirmative consent don’t want sex contracts.

In addition, even under our current framework we accept a variety of pieces of evidence from the prosecution to show that the victim did not consent. A clear “no” is obviously the strongest kind of evidence, just as under an affirmative consent framework an enthusiastic verbal “yes” would be the best evidence, but that is just what the best evidence is. That is certainly not the only kind of evidence available. Courts already look at the entire context surrounding the incident to try to determine consent. The process would be virtually the same under an affirmative consent model. The only difference would be that the burden would be on the defendant to show that they believed they had obtained consent based on the context of the encounter instead of placing the burden on the victim to show that, although they didn’t say “no,” they had expressed non-verbally that they were unwilling to participate.

The shift in the burden of proof is sometimes cited as a reason not to adopt an affirmative consent model. Critics argue that this affects the presumption that the accused is innocent until proven guilty. Which is, rightly, a cornerstone of our judicial system. If this model did, in fact, change that presumption then it wouldn’t be an appropriate answer to this problem. But it does not.

Take another crime as an example. A woman’s car is stolen. The police issue a BOLO on the car, find it, and bring the suspect in and sit him down. They ask him “did you have permission to take that car?” and he replies “Yes, officer, she gave me the keys!”

He is still presumed innocent and, as far as this brief hypothetical tells us, hasn’t had his rights violated. It looks as though he is going to get a fair trial at this point. That trial may still devolve into another he said, she said situation. She may allege that she didn’t give him the keys but merely left them on the kitchen table. At that point, it will be up to the jury to decide who they believe, but that would have been the case in any event. He is presenting her giving the keys to him as one of the facts to show his innocence.

If a woman’s car is stolen we don’t question her about how many miles are on the odometer. We don’t ask if she wore a seatbelt the last time she drove it. We don’t care if she had been drinking because her alcohol consumption doesn’t negate the fact that she was a victim of a crime. We certainly wouldn’t force her to prove that she didn’t give the thief the keys.

That is how affirmative consent works. It wouldn’t require a written contract or even necessarily a verbal assertion. Context would always matter and the cases would still often become two competing stories about what the context meant. And it doesn’t mean that we are assuming that person is guilty before they have the chance to show that they did, in fact, get that consent. It just means that we are placing the burden of proving that consent was obtained on the party claiming that consent had been obtained.

Conclusion

There is no other category of crime where we ask the victim to show that they didn’t want to be the victim of that crime. A man who is stabbed in a bar fight, regardless of whether he was drunk or belligerent, isn’t asked to prove that he didn’t want a knife wound.

We need to change our cultural framework of rape and consent. When we are working under an affirmative consent framework what we are doing is changing the first question. Currently, our first question is for the victim: did you say no? Under an affirmative consent model our first question is for the suspect: did you get a yes?

Resources

Women Against Violence Against Women: What Is Rape Culture? 

Vice: A Brief And Depressing History of Rape Laws

Women’s Law Project: Rape and Sexual Assault In the Legal System

Find Law: Is The Tort of Wrongful Seduction Still Viable? 

International Models Project On Women’s Rights: Law Reform Efforts: Rape and Sexual Assault In The United States of America

Catholic Company: The Virgin Martyrs As Models of Purity

Chicago Tribune: To Combat Sexual Assault, Colleges Say ‘Yes’ To Affirmative Consent

Think Progress: What Affirmative Consent Actually Means

SUNY: Definition of Affirmative Consent 

Washington Post: Why We Made ‘Yes Means Yes’ California Law

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Rape Culture and the Concept of Affirmative Consent appeared first on Law Street.

The issue of political spending is one that has garnered a lot of attention this election cycle. Both candidates are associated with 501(c)(3) organizations and have faced scandals recently regarding how they collect and spend charity money. Clinton faced allegations that she granted access to the State Department to wealthy Clinton Foundation donors. Trump was fined by the IRS for his use of Trump Foundation money to fund the campaign of Florida Attorney General Pam Bondi, allegedly to encourage her office not to pursue further investigation of Trump University. The two scandals are fundamentally different, but are two sides of the same coin. Clinton’s scandal is about the possibility that she was selling political access to raise money for a charity. The charges against Trump involve using money that was raised for charity to buy political access for himself. The Trump Foundation has some additional issues, ranging from allegations of self dealing and an investigation by the New York Attorney General, who recently ordered the foundation to stop accepting donations.

But the Bondi allegations against Trump raise more questions than just whether Trump is fit to serve as president. They bring up the issue of what exactly the difference is between a 501(c)(3), a 501(c)(4), a 527, and a myriad of other institutions that can blur the lines between a charity and a political organization. The IRS has rules governing these categories but the rules are not always clear. And while the purpose of these rules is to keep donations to charities tax deductible to encourage that behavior, while not providing the same benefit for political speech, it is not always clear whether the rules are doing an effective job. We want to encourage both charitable donations and political speech, but we only use the tax code to incentivize charitable donations.

How exactly do we draw distinctions between what is charitable and what is political, and how do tax incentives come into play?

Distinctions Without Much Difference

There are several main flavors of tax-exempt organizations that may engage in what a lay person would think of as either political spending, charitable work, or both. They are each referred to by their section of the tax code and the differences are fairly technical but important to understand.

The first type of organization is a 501(c)(3). Both the Trump Foundation and the Clinton Foundation are examples of this type of group and the purpose of a 501(c)(3) is supposed to be purely charitable. Meaning that this group has the greatest restrictions on it in terms of what kind of political activity it can engage in. This doesn’t mean that they can’t engage in ANY political activity, because they actually can. But their ability to endorse a candidate is curtailed. They also can’t spend money on a campaign. They are still able to do some lobbying and political advocacy, as long as that advocacy is not promoting a specific legislative agenda or candidate but rather is educating the public.

In exchange for complying with these rules, 501(c)(3)s are permitted to accept unlimited donations from benefactors whom they do not have to disclose and those benefactors can claim the donations they give as tax-deductions.

A 501(c)(4) has slightly different trade-offs. These groups can engage in political activities as long as those political activities are not their primary purpose. And they can endorse candidates, lobby, educate the public on their issue, and accept unlimited anonymous donations. However, because of their increased political activity, those donations are not tax deductible.

A 527 is the most political of the three. Political spending is in fact the entire purpose of these groups, which means they come with added strings such as only being able to accept limited donations that are non-deductible and the donors can no longer be anonymous. They can’t “lobby” but they can endorse and even exist for the purpose of electing certain candidates. And although the donations made to a 527 are not tax deductible the organizations themselves pay limited taxes—501(c)(3)s or 501(c)(4)s pay none. That is why even if your donors can’t deduct what they give to you from their taxes it is still very beneficial for these organizations to comply with the rules to keep their tax-exempt status. (And why the IRS fined Donald Trump for his donation to Pam Bondi from his 501(c)(3)).

To see the difference between a 501(c)(3) and a 501(c)(4) more clearly check out this video:

Facts and Circumstances

To summarize, a 501(c)(3) is what you would think of when you think of a “charity.” And a 501(c)(4) is a “social welfare” organization. While not a charity per se, they are supposed to be serving the public good through their advocacy. We want to encourage political behavior, particularly from diverse viewpoints, and promote political speech. Granting tax-exempt status to social welfare organizations, or 501(c)(4)s, is one way to facilitate that. The only question is how do we determine what is a social welfare organization, and therefore worthy of these benefits?

The rule for what qualifies as a social welfare organization is very vague. The standard is whether the organization is “primarily engaged” in social welfare activities. The IRS does not give a bright-line rule regarding what percentage of activity is required to be social welfare versus political in order to qualify. It may be a 51/49 split in terms of how they spend their funds, or essentially whatever the IRS deems appropriate. According to the IRS, deciding this issue is a “facts and circumstances test.” A very vague standard indeed, which opens the door to making determinations about which groups qualify based on something other than numerical data and the appearance of, if not actual, favoritism for different political viewpoints.

But if these organizations are doing good work (which may depend on your political point of view but let’s go off the assumption that all political speech is a social good) then why should we care so much about a 501(c)(4) getting tax exempt status to encourage it?

The key issue is actually part of a multi-step process that revolves around the size of donations and the disclosure involved. A 501(c)(4) can accept an unlimited amount of donations and also does not need to disclose its donors. By contrast a Super PAC is required to disclose who donates to it. But when the donor to the Super PAC is a 501(c)(4)–and these organizations often ally with each other so that one cause will have a whole string of different arms that have different tax-statuses and abilities–all they need disclose is the name of the 501(c)(4). So a billionaire who wants to influence electoral politics can donate $100 million dollars to a 501(c)(4), which doesn’t have to tell anyone where that money came from. The Super PAC attached to that group then takes that donation from the group, and does disclose that it came from the group, but that doesn’t let the public know that our billionaire friend essentially donated $100 million dollars to that Super PAC. We therefore have no way of tracing whether an organization or politician allied with that Super PAC ever paid back that favor.

Kim Barker from the Washington Post does a good job of explaining this line of reasoning in why we should care about the 501(c)(4) designation and its uses.

Conclusion

It makes sense that we would want to structure a policy that allows organizations for political advocacy to not pay taxes. It lets organizations form that otherwise might not be able to afford to do so, which enables minority viewpoints to be more easily heard by the public. Regardless of what those viewpoints are, that’s a healthy thing for the republic. Granting tax-exempt status to 501(c)(4)s, even if the IRS definition of social welfare is not that clear, might therefore be a good idea.

The trouble occurs when other organizations can then manipulate the special rules given to social welfare organizations to siphon money into campaign funding and electoral politics. That kind of political speech, the support of a specific candidate, is not the same kind of social good and is not currently what we want to give incentives to. If it was, then we would grant the exact same tax privileges to 527s and other political groups that we do to 501(c)(4)s or to charities.

The ability to do this is in part because the rules of engagement and alliances between these organizations have gotten very complicated and very fuzzy. If there is no rule as to what “education” is versus “advocacy” versus “lobbying” then the distinctions between these groups lose much of their meaning. But the greater problem is the concept of anonymous donations. In a political system that depends on the open and vigorous exchange of ideas keeping donations to any kind of political organization, whether they are merely engaged in “advocacy” or in direct electioneering, is counterproductive. If we are going to equate money with political speech, the public needs to be able to know who is saying what, which means knowing exactly where all political spending comes from.

Rather than eliminating various tax benefits to organizations we want to encourage (such as charities and social welfare organizations) we could instead require the disclosure of donors for all groups. Then if a billionaire donates to a 501 (c)(4) and that group donates to its sister Super PAC we can easily trace the funding of the Super PAC back to the original donor. It does not take care of the concern about the amount of money that an individual can give to a political cause, which is a separate problem, but it does solve the anonymity that keeps the public from being fully informed about politicians, their supporters, and the wide range of groups engaging in political activity. And if there is a reward exchanged in the future from the politician to the billionaire donor, we will be able to trace that too, and determine if there was a quid pro quo arrangement.

Resources

The Washington Post: Emails Reveal How Foundation Donors Got Access To Clinton and Her Close Aides At State Department

Think Progress: Trump Foundation Illegal Self-Dealing

Law Street Media: Charitable Trusts: Can Greed Ever Be Good? 

Outside the Beltway: 501(c)4 vs 501(c)3 vs 527

Bolder Advocacy: Introduction: The Types of Exempt Organizations And What They May Do

Open Secrets.org: 527s: The Basics

Open Secrets: Types of Advocacy Groups

Daily Kos: 501(c)(3)s, 501(c)(4)s, and the rest. A primer.

The Washington Post: Let’s Back Up: How Is The IRS Supposed To Scrutinize 501c4s Anyway? 

The Sunlight Foundation: The Difference Between Super PACs and Dark Money Groups

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Faux Anonymity: How Do We Effectively Encourage Political Speech? appeared first on Law Street.

Washington, D.C. has the highest infant mortality risk of all the world’s high-income capitals–7.9 deaths for every 1,000 births. But the infant mortality rate in Finland is much lower, and one of the reasons for this is the simple but effective Finnish baby box. All new parents in Finland are eligible to receive a box from the government to help them through the early stages of their child’s birth. Inside the box, there are essential items for raising an infant such as clothes and, because it is Finland, a snowsuit. The box itself doubles as a crib, reducing the risk of accidental death during sleep.

Countries all over the world are now emulating Finland’s baby box idea, which has been around for decades. One such imitation, the “Barakat Bundle,” hopes to encourage women to make prenatal visits while providing them with the essentials to raise a healthy infant, thereby reducing both maternal deaths and infant mortality. The Barakat Bundle, although inspired by the Finnish baby box, is geared more to the needs of mothers and infants in Southeast Asia. For example, it includes medical supplies, such as a clean delivery kit for children born at home.

Today this practice is so culturally engrained in Finland that it continues largely without comment. Parents there overwhelmingly opt in favor of the baby-box, even well-off parents, and it has become a shared part of the Finnish identity. But when this idea is discussed in the United States it seems controversial; the ultimate symbol of the dreaded “nanny state.” Is the baby box an adorably autocratic threat to personal liberty?

Unboxing the Box

The first step to answering that question is to look at how the baby box actually works. This tradition dates back to 1938 when Finland was much poorer than it is now and had an infant mortality rate of 65 out of 1,000 births. The rate now is 2.52 out of every 1,000 births, an improvement that is certainly not entirely due to the baby box. But the rate is half that of infant mortality in the United States, so the baby box may be a significant factor. From the start of the program until 1949, the box was only available to low-income families. But starting in 1949 the box became available to everyone. This may help account for the program’s success, much like the way the inclusion of everyone in Social Security–not as a hand-out but as something you pay into and therefore “deserve” to benefit from–helped to sell the idea to the American people.

There have been other changes over the years as well, some of which are designed to encourage certain parenting behaviors. For example, formula and bottles are deliberately not included any longer, which promotes breastfeeding. Boxes also contain cloth diapers, rather than disposable ones, for environmental reasons. There are also condoms in the box, which would probably disconcert a more conservative American audience. The clothes in the box are gender neutral, designs change yearly, and as you would expect, are extremely adorable. And practical. So much so that 95 percent of Finnish mothers choose the box–including mothers who already have children–even though you can opt for a cash payout instead. In fact, those who don’t live in Finland can purchase a version of the box from several companies, such as Finnish Baby Box. You can watch parents opening the box on YouTube if you are curious about the contents.

This brief video does a good job of summarizing some of the key elements to the baby box.

There’s also a requirement that women have to have at least one prenatal visit, before they are four months pregnant, to be eligible to receive one. The Barakat Bundle requires a pre-natal visit as well, which they anticipate will reduce maternal deaths.

The simple genius of the baby box is not just that the contents of the box are useful tools for parents, but the box itself. In fact, this simple cardboard box may be the main reason why the program has reduced infant mortality. The box comes with a mattress and is specifically designed to provide the optimum sleeping environment for an infant to avoid SIDS or cot death. The U.K. has taken heed and is launching a pilot program to give out baby boxes to mothers in hopes of reducing its relatively high infant mortality rate. A similar program is happening in Texas, sponsored by a local Rotary Club, which will give out 100 boxes to new mothers.

This video explains some of the benefits of the baby box to help babies sleep safely.

And this one shows how some of the new mothers and babies react to the baby box.

Who knew that the safest place to put a baby was in a cardboard box?

State Sponsored Shower

In the videos and examples above, hospitals and altruistic private organizations take it upon themselves to invest in these boxes and distribute them to new mothers. Why doesn’t the state government step in to do this too, if baby boxes are so effective?

Finns don’t quite see it this way but many Americans view the baby box, and other similar handouts, as antithetical to the values of freedom. It does seem a bit odd, if you think about it, that all the babies born in the same year receive the same outfits. And that parents are steered toward certain behaviors, such as breastfeeding, by a “benevolent” government entity when they might want to make other choices. Americans have a deep-seated wariness of large government, as well as a love for it, that pushes them away from embracing these kinds of policies. Finland gives away 40,000 of these boxes every year…but that’s just in a country the size of Finland. The level of bureaucracy that it would take to accomplish the same task of giving every mother a baby box in the United States would be staggering, and to many, terrifying. And to be perfectly blunt about it, expensive.

The American Approach

Americans have an alternative approach, which is the tradition of the baby shower. Rather than have the state or federal government welcome your baby into the world with a box of essentials, American parents often received personalized and eclectic gifts from friends and loved ones. This seems more in keeping with our love of diversity and our individual uniqueness. Baby showers are in fact a great way to ensure that you have the tools you need to survive the first months of parenthood.

It is the families who do not get the shower experience, however, that should be the concern. If you don’t need a baby box because you have a network of family support and the financial means to collect those items yourself, the baby box idea is still helpful but it provides more of a convenience and a sense of community rather than a financial benefit. Even the wealthy Finnish mothers typically choose the baby box in part because it isn’t about the box. It is what the box represents, that you and your new child are part of a community that cares about you and investing in your child’s future. Getting the box is part of being Finnish. For a family who needs the baby box, it is also about being part of a community that cares about you, but also also about the very practical reality that unless you get the box your baby will not have access to many of the items inside it.

The baby box, therefore, shows the fault-lines in our political thought. Giving away a baby box to every family, ensuring that all children start out with as equal a chance as we can give them, speaks powerfully to our egalitarian values. After all, one of the things Americans are most proud of about our society is our belief that the United States is the most egalitarian society on earth. Everyone has a chance to succeed. Our greatest political turmoil often results from the perception that we are losing that egalitarian character in our society.

It’s the giving away portion that gives us pause. Americans are wary of government overreach. We like our charity to be a private affair, run by altruistic individuals and faith communities, not the government. And our individualism resists anything that seems like a state uniform–no matter how adorable.

Support for the baby box, therefore, turns on whether you see it as a giveaway from the nanny state to parents who should be taking responsibility themselves or whether you characterize it as an investment by society into these newborns. It all comes down to responsibility and who should have it. In Finland, they have answered that question. Finns feel that society as a whole ultimately shares responsibility for, and therefore investment in, its children. In the United States, our paradoxical character makes the answer more mixed.

Conclusion

The baby shower doesn’t do anything to help the family that needs the baby box. If you had the kind of family support that baby showers represent you wouldn’t need the box. Placing the responsibility to provide these kinds of tools solely on the baby shower emphasizes for new parents who don’t have the same blessings that they are on their own. Sharing that responsibility across society with the baby box does the opposite. It provides tangible benefits but it also sends a clear message that this baby is part of our community. Part of our future. And that we all, together, share in the investment into that future. The parents are the MVPs, but everyone is on the team.

Resources

The Washington Post: Why Babies Should Sleep in Cardboard Boxes

Barakat Bundle: About

BBC: Why Finnish Babies Sleep in Cardboard Boxes

The New York Times: Why Finland’s Babies Sleep in Cardboard Cribs

Daily Mail UK: New Mothers Given Finnish Style Baby Boxes

Today: Thinking Outside The Box: Finnish Baby Kits Could Save Infant Lives

Goodreads: The Nordic Theory of Everything

The Atlantic.com: Finland’s Baby Box: Gift From Santa or Socialist Hell? 

Goodreads: Liberty and Coercion 

Goodreads: The Politicians And The Egalitarians

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Thinking Inside the Box: How Finland Makes Parents and Babies Happy and Healthy appeared first on Law Street.

Martin Luther King Jr. once said that “the arc of the moral universe is long, but it bends towards justice.” That may be true, but it is not a smooth trajectory. Nor can you set society on the path to more justice and expect it to progress to your goal unsupervised. Creating a just society is not a one-time event. It is a constant process that requires continued maintenance.

More than 60 years after the landmark decision of Brown v. Board of Education we still face the challenge in the United States of ensuring that students of all races have the same access to a quality education. In many places, the gains that were made in the 1960s and 1970s have been eroded. In some places, it is as though no change took place at all.

Not only is segregated schooling contrary to our laws, it is contrary to our most deeply-held values as a nation of liberty and equity. And if neither the legal nor the moral argument persuade you that this should concern you, consider the self-interest argument. Because the children that we refuse to invest in today are the ones who will be unable to invest back into our society tomorrow.

All Deliberate Speed

This video is long, but if you are interested in a thoughtful discussion of the history of school integration and the challenges that we still face in making its promise a reality it is well worth watching.

Brown vs. Board of Education was in many ways a radical decision, and in some ways not radical enough. It refuted the earlier Supreme Court ruling of Plessy v. Ferguson, at least in the context of public education. In Plessy, the court had held that requiring black and white passengers to use separate accommodations on trains was not unconstitutional so long as the separate facilities were also equal. Thus the question became, in a discrimination case, a question of fact as to how the accommodations actually compared. Requiring black students to use facilities that were of markedly different quality wasn’t permissible, although in practice happened often, but if the facilities were equivalent then separate wasn’t discriminatory.

Brown changed this in the arena of public education. The rationale for opposing the segregation that existed was not merely because the resources provided to children of color were unequal–although that was the case and represented the primary, practical motivation for challenging the status quo–it was that having separate schools, even if those classrooms were identical, was inherently unequal. That separating American children based on race, even if all the other factors of their education remained the same, was in and of itself something that was damaging. In fact, evidence was produced to show psychological harm to black children from their segregated schooling. The practical effect for a school that could have been shown to be unequal in resources would have been the same with a Plessy standard. The school would have to be integrated or given more resources, the same way it would be forced to integrate under Brown. But in terms of what society was now willing to accept as equitable and just, Brown represented a profound change.

But Brown provided no roadmap for how to get from the world of 1954 into a modern, integrated society. And with the use of the now infamous phrase “all deliberate speed,” the court gave the societal forces who opposed integration ammunition in their fight to slow it down or halt it completely. Sixty years later there is still a backlash to integrating our schools.

Take a look at this video that highlights the situation in one town in Alabama that is still struggling with integration.

The Scope of the Problem

If you think that integration is a problem only in the South, think again. In the period from 1968 to 2011 school segregation actually increased in the Northeast–the percentage of black students in schools with at least 90 percent minority students went from 42.7 to 51.4 percent. In New York, 64.6 percent of black students go to a school that fits this definition of “hyper-segregation.”

If you attend a segregated school you are put at an immediate disadvantage, especially if you are a member of a minority group. You are segregated not only by race but also often by class, doubling down on the negative effects of growing up in a low-income neighborhood. Not only do you miss out on the social and cultural stimulation of meeting people who are different from you, you miss out on more tangible perks of a good school as well. Good teachers, good materials, and good courses aren’t on offer for you. The message is no less clearly received by children just because it is not said out loud: You don’t matter.

In contrast, a student who attends an integrated school is given an advantage over his or her segregated peers, whether they are black or white. If you are black and spent a year in a desegregated school your chance of graduating high school went up by 2 percent, for each year you attended that integrated school. If you spent five years in that integrated school your future wages rose by 15 percent, or an extra $5,900 in annual family income. You also are probably less likely to have a criminal record, since for minority boys the racial makeup of their school can have a significant impact on whether they commit a crime. A nonwhite boy in a school that has 60 percent minority students, versus 40 percent minority students, is 16 percent more likely to commit a crime.

Given that schools that have a high minority population are also, by every metric, of lower quality, it is not surprising that parents try to get their children in school elsewhere. Parents diligently research local schools when purchasing homes, take part in lottery systems, advocate for “freedom of choice” in schooling with voucher programs, push charter schools, and sue to resist integration attempts. This impulse is so strong among white parents in particular that even if two schools are equivalent in test scores white parents will opt for the school that has the “right” ratio of white and minority students. Apparently, you want a little diversity, but not too much.

In the midst of this, the Supreme Court ruled in 2007 that two school districts could not use race as a factor in assigning pupils to schools. Racial discrimination is not, according to Chief Justice Roberts, an answer to racial discrimination.

Political Will

If taking the race of an individual student isn’t the answer, what is? Take a look at this PBS NewsHour interview that strives to answer that question.

Professor Noguera argues that the situation that we see here–where poor, minority children are unable to break out of a cycle of segregation and poverty–is because of a lack of investment and a lack of political will. Our Nordic neighbors would definitely agree. In Finland, a country that is generally lauded as having the most successful education system in the world, decisions are made very differently.

In her book, “The Nordic Theory of Everything: In Search of a Better Life,” Anu Partanen explains the two different philosophical approaches to the question of education. The first approach is the “demand” approach. Education is an investment that parents are making in their children. And so to increase the quality of education you need to increase the demand for it made by those parents. Competition–charter schools, private schools, school choice vouchers etc.–will help to so this. In the United States many people, often Republicans but not exclusively so, support this theory. It allows parents to take the initiative to advocate for their children and to place them in the best possible circumstances.

Partanen’s critique of this approach is twofold. First, although parents are expected to make this investment they don’t directly benefit; it is the children and society at large who benefit from this investment–and not for 20 years or so. This may make the link between reward and investment tenuous for parents and perhaps discourage the investment. Which leads to the second, stronger criticism that it places all children at the mercy of their parents’ willingness and ability to invest in them. The most vulnerable children, children born to parents who do not have the means to invest financially in their education and/or do not have the inclination to do so, are just out of luck. Unless they happen to fall into a good school district, which is highly unlikely. Your entire academic fate rests on that first roll of the dice–who you were born to.

The Nordic Model

The alternate approach is the approach that holds sway in Finland and most other Nordic countries: the “supply” approach. Under this approach, education is viewed as the child’s right to receive an education, not the parent’s right to select the kind of education they want for their children. Because it is a right for the child, it is the government’s responsibility to supply the means to that education: high quality, equitable schools. Not the parents’ responsibility to demand it. While it by no means ensures an idyllic childhood for everyone it eliminates one of the principle vicissitudes of fortune, the quality of your education, that usually accompany your birth.

The keys to that approach being successful are having universally high-quality education, regardless of where the child is, and the decision by the government that a society as a whole is going to invest in its children. The fact that both of these are absent in the United States is what leads parents to play the game to get their children into predominately white public schools, or private schools, to give them the best shot of receiving a valuable education. In a society where all schools are excellent, there is no need to play that game. But because we do not practice what we preach–that all of our children are created equal–that society does not exist here.

The Gorilla In The Room

One problem with solving the issue of integration is that we have so far been unwilling to profoundly question how our schools are funded. School districts are largely funded with property taxes in that locality, so it creates a vicious circle of poverty and discrimination. Poor districts, with their disproportionate minority populations, raise less money than their wealthier and whiter counterparts. So they spend less per student, reducing the quality of education, and encouraging even more “white flight” from the area. Which, in turn, causes affluent parents in good school districts to turn a blind eye to the plight of other people’s children. Parents don’t feel that they need to worry about education and opportunity in a school their child doesn’t attend.

But whether they realize it or not, the middle class and the wealthy do have skin in the game. As both PBS video discussions make clear, these children may be other people’s children but they will not be someone else’s problem. They will be the workers who support social security in our old age. They will be the consumers acting as the engine of our economy. They will be the law-abiding citizens who participate in our democracy.

Or, because we did not invest in them, they won’t. And all Americans, not just those in the neighborhoods of these failing schools, will feel that burden.

Conclusion

The secret to America’s success is her dynamism and her diversity. We cannot be exactly like Finland, nor should we strive to be. But we are stopped from making reforms to our education, not by the things that make us different from Finland but by a lack of commitment to our own core values and a lack of political will. For example, rather than funding schools based on local property taxes a state could collect property taxes, pool them together, and divide the resources based on the number of students and student need as opposed to the accident of their geography. Another solution could be to reinstitute busing requirements for segregated districts. Or programs that encourage neighborhoods to not be so segregated in the first place.

These approaches may seem radical. And truthfully an overhaul of how schools are funded would be about as ambitious a project as one could undertake, politically and just logistically. But they are not radical if we decide that we are going to embrace the value of equity in our culture and treat education as something that every child, regardless of birth or circumstance, is entitled to. Not just because it is morally right in and of itself, although it is, but because our mutual investment in our children is to our mutual benefit.

Resources

Cornell Law School: Plessy v. Ferguson

Cornell Law School: Brown v. Board of Education

Slate: Brown v. Board of Education: On 60th Anniversary Schools Are Segregating

New York Times Magazine: Choosing a School For My Daughter in a Segregated City

Goodreads: Savage Inequalities

PBS: The Return of School Segregation in Eight Charts

The Washington Post: How Segregated Schools Turn Kids Into Criminals

Slate: When White Parents Have a Choice They Choose Segregated Schools

CQ Press: Racial Diversity In Public Schools 

NPR: Supreme Court Quashes School Desegregation

Goodreads: The Nordic Theory of Everything: In Search of a Better Life

Goodreads: The Shame Of The Nation

Atlantic: The End of Busing in Indianapolis

The Washington Post: ‘Don’t Force Us to Give Up Our School’ a Mississippi Town is Being Forced to Integrate 

PBS: A Return to School Segregation in America

USA Today: Still Apart: Map Shows States With Most-Segregated Schools

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post How Can We Fix Racial Segregation In American Schools? appeared first on Law Street.

We now know more than ever before about the relationship between our genetic heritage and disease. In previous centuries humans barely even understood the process of how an embryo was formed, or who a fetus “belonged” to. One of the most popular theories, posited by Aristotle, was that all of the genetic information to create a person was contained within the father’s sperm. The child’s mother was merely a vessel for its gestation, providing the raw physical material but nothing more.

Today we know that we inherit genetic information from both of our parents. This genetic inheritance can be a blessing, such as inheriting a combination of immunities that leave us less vulnerable to a variety of pathogens than either of our parents. It can also be a curse, passing on debilitating diseases that can kill or disable, as is the case with Huntington’s disease.

Scientists have been able to identify over 200 diseases that are passed down from a mother through the mitochondrial DNA in her egg. They have also developed a technology to prevent this DNA, and therefore these diseases, from being inherited. But in order to do that, they need to create something that was not possible in Aristotle’s day. A child with three parents.

All About Eve

Every human being on the planet can trace their mitochondrial DNA back to one woman. Known as “Mitochondrial Eve” this woman, who lived somewhere in eastern Africa, passed on her mitochondrial DNA to her daughters (and sons) who then passed it on to their children. It isn’t really that she was the mother to every future human, as the name Eve might suggest. Rather she is our “most recent common ancestor.” This means that Eve’s children continued to have children–specifically, female children because only females pass on their mitochondrial DNA–while the other ladies had no children or only males–their mitochondrial DNA lines died out. Scientists have been able to use mitochondrial DNA to illuminate the ancient migrations of humans out of Africa and all over the world.

Its use for tracing human migration, and the diseases that damaged mitochondrial DNA can cause, are the main contributions of mitochondrial DNA. It isn’t a very significant percentage of your genetic inheritance, only containing 37 genes, compared to the more than 20,000 genes that humans possess. However, these genes can cause seizure disorders and the disintegration of brain tissue in some of the most serious illnesses that they trigger. Women who have faulty mitochondrial DNA were previously unable to have healthy, genetically related children. But with modern technology that is now possible.

How Do We Get Three-Parent Embryos?

The mother, or “primary mother,” has her egg harvested and the nucleus is removed. The “secondary mother” donates her egg as well, and the nucleus from this egg is removed and replaced by the nucleus from the primary mother. This egg is then fertilized by sperm. The resulting embryo has the genetic information from all three parents. Take a look at this CBS Sunday Morning video which gives a brief explanation of how the process works. It also alludes to the technology’s future implications.

There are several caveats to the use of this technology. The first caveat is that, unfortunately, that it does not guarantee a disease-free child. Up to 4 percent of the mutated DNA in the primary mother’s mitochondria can transfer into the embryo. Meaning that it is still possible for the child to inherit the diseases that the procedure was designed to eliminate. The risk is significantly lowered, but still exists.

What Critics Say

There are also some who suggest that investment into this research is misplaced. Mitochondrial disorders affect a very small percentage of people and keep only a few women, statistically speaking, from having children that are genetically related to them and also free from disease. If a woman knows that her child would inherit her damaged genes and likely develop a disorder she can still have a child, just not one that shares her genetic makeup. Research that helps treat these diseases would be better. Better still would be research that focuses on diseases that affect greater numbers of people where investments would get more value in the reduction of human suffering.

Additionally, our understanding of the relationship between genes and inherited traits is imperfect. We can trace certain diseases back to mitochondrial DNA and we know that the disorders they cause are directly related to the inheritance of those genes. But the interplay between the genes we inherit and the traits that develop is not always clearly understood, and manipulating them may prove to be more art than science. We may have the best of intentions to eliminate these diseases but the technology we use to do it could cause other problems that we cannot foresee.

Some scientists fear not only that we may inadvertently create other disorders with gene manipulation, but that we might be tempted to go beyond the elimination of disorders and start trying to select for “desirable” traits. On PBS News Hour, scientists discussed some of the implications of this technology as it evolves.

The ability to create a child with three parents (although since the genetic inheritance from the “secondary mother” is so small that may not be a fair characterization) would have seemed like science fiction 20 or even 10 years ago. Just as the technology to implant an embryo from one woman into the womb of another was unimaginable… right up until the moment it became reality. Scientists who are advocating restraint–those who fear that we may be tempted to use this technology to manipulate traits so that children can be custom designed by wealthy parents–are speaking about an outcome that is not possible. Yet. And while they may sound paranoid, the time to worry about the ethical implications of a new medical breakthrough is, ideally, before it becomes a reality. Not when the genie is already out of the bottle.

Molecular Scissors

The technology that scientists are worried about is “gene editing.” It sounds even more like science fiction than a three-parent embryo, but is quickly becoming scientific fact. In April, Chinese researchers were able to alter a gene in non-viable human embryos that dealt with human resistance to HIV.

Instead of replacing one of the cell’s pieces, as is done in mitochondrial DNA replacement therapy, gene editing actually manipulates the genes that are inherited. Mitochondrial DNA replacement therapy is kind of like getting a donated organ. Your liver is malfunctioning and so a donor gives you their liver. Or, in the case of a live donor, a lobe. The science is not changing the essential character of a human liver and it is a classic caveat emptor situation. You’re getting the liver you’re getting, with any of the attendant issues the new liver may possess, and no guarantees. But gene editing is more like a scientist looking at your malfunctioning liver, saying ‘we can do better,’ and using science to modify how the human liver functions. It is much more exciting, much less predictable, and much more like “playing God.”

The danger in the three-parent embryo technology is not so much the abuse of this technology. Other than the transfer of the nucleus into the donor egg the process is not “designing” a child any more than in-vitro fertilization does without a mitochondrial donor. Not that the process of in-vitro fertilization is without ethical quandaries, for there are many who think that this technology is immoral. But the debates on the ethics of in-vitro fertilization center on the creation of embryos that may never be implanted and the alleged selfishness of investing so much in being able to have a biological child when adoption remains an alternative. However, the ethical debate over mitochondrial DNA replacement is focused not on the danger in this technology but in the next technology that it will enable. This could be a situation where we are not merely trying to keep embryos from inheriting a disease but actively trying to modify how the human body responds to its environment.

Conclusion

Here in the United States, the use of mitochondrial replacement therapy was recently deemed ethical, at least for the creation of male embryos, but the therapy is unlikely to be experimented on soon. This is because male embryos will never be able to pass on mitochondrial DNA to their offspring. As a result, any inadvertently created errors won’t affect the next generation, which is a reasonable precaution which gives one pause about what “errors” we could create that affect the current embryo. The FDA has not approved it for clinical trials, but last year the technology was approved for clinical trials in the U.K. for embryos of either gender. Whether these trials–and the possibility for women with mitochondrial mutations to have healthy, genetically related children–are worth the Pandora’s box they open remains to be seen.

Resources

Goodreads: The Gene: An Intimate History

NBC News: Three-Parent Babies Are OK, Experts Say

PBS: NOVA: Neanderthals On Trial

NPR: Babies With Genes From 3 People Could Be Ethical, Panel Says

The Washington Post: To Prevent Disease Ethicists Approve Creation of Embryos With Three Genetic Parents 

The Telegraph: Three-Parent Baby Technique Could Still Pass On Mutated DNA

Genetics and Society: About Human Germline Gene Editing

Smithsonian Magazine: U.S. Panel Deems Three-Parent Babies Ethical

The United Mitochondrial Disease Foundation: Mitochondrial Replacement Therapy

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Three-Parent Embryos: How Far Should We Take the Miracles of Modern Medicine? appeared first on Law Street.

The U.S. government uses incentives in its tax policy to promote charitable giving. Most people are aware that they can deduct donations that they make to charitable institutions from their taxes. For small amounts, some people may not take advantage of this. Others might prefer to send the money that they would owe in taxes to a favorite charity, which is more in tune with their values. As a result, they try to diminish their tax burden as much as possible in favor of donating to charity. But very wealthy individuals can take it to a whole new level.

One strategy to reduce your tax burden that you can use is the creation of your own charitable trust. Charitable trusts allow the wealthy to preserve their asset value by not paying capital gains taxes on assets they sell through the trust, deducting the value of the gift that was made from their personal income tax, and taking advantage of other tax benefits designed to encourage charitable giving.

The charity gets a taste and the donor, who otherwise might not have given to charity at all, is incentivized to give. So is this a situation where greed is morally good?

Bet To Live Strategy

Take a look at this video about one of the most popular kinds of charitable trusts that you can create, the charitable remainder trust. Assuming of course that you have a million dollars. It gives a simple explanation of how the process works but, more importantly, a glimpse into why the process works.

As you saw in the video, the fact that the beneficiary is a charity can be irrelevant. In fact, the commenter goes out of his way to explain that you don’t actually need to care about being charitable in order to take advantage of this setup. What you should care about is whether you and your spouse have a long life expectancy. Because if so you then will be able to get the maximum amount of utility out of your trust.

This is why the charitable remainder trust, and other ways that the government incentivizes charitable giving by providing tax benefits to donors, is thought of as a good idea. Not because it rewards people for giving to charity but because it incentivizes people who otherwise wouldn’t into donating as well.

People who are motivated by their conscience to give money to charity–particularly those who have an issue of critical importance to them and a charity that focuses on that issue–are going to give money anyway. They have a built-in incentive to do so and may even give whether they could claim a tax benefit from it. But those only make up a portion of donors all charitable donors in the United States. The other portion includes those who are pushed to donate to charity because they want the financial benefits that donating provides. Of course, there is likely some overlap, those who get satisfaction or social benefits as well as a tax deduction for their actions, but there is a subset for whom it is all about the money. And if they weren’t benefitting themselves they wouldn’t be giving to charity.

By providing a financial motivation to donate we are capturing a donor class for charities that we otherwise would not have. What we want is to maximize the donor pool and by appealing both to greed and to altruism we can get the most donors possible. So what is the problem here?

Institutional Dynamics

One problem that exists with this setup is the amount of benefit that charities actually receive. Incentivizing the wealthy to give to charity through greed may be a great idea–but only if those charities actually get the money–or enough money to justify our privileging a charitable donation over what government would collect in the form of taxes. People who want to take advantage of the tax benefits that we use to encourage charitable giving will often set up a private foundation, which will, in turn, donate money to various charitable endeavors. But the IRS only requires the private foundation to spend 5 percent of its assets annually. Further, it doesn’t require that 5 percent to go to the actual mission of the charity they are donating to, it can go to things like administrative costs.

The individuals setting up these private foundations are receiving very generous benefits in the form of a tax deduction, but the charities that are supposed to ultimately benefit from these foundations may not be.

The amount that each institution needs to spend to be considered charitable–5 percent–is an arbitrary number that does not really represent what is the best amount for these institutions to spend. Especially when that percentage is so small. And while foundations could spend more than the required 5 percent, they rarely do.

It might be a good idea to treat different types of charitable giving in different ways. For example, a donor who is setting up his or her own private foundation versus one who is giving to an already established one. Allowing a donor who creates their own charity to label that activity as “charitable” when it only needs to spend 5 percent of the gift on that purpose may be unfair. Whereas we may want to allow academic institutions managing large endowments to be fiscally conservative to preserve their resources. It may make sense for us to treat different types of foundations differently and not have a blanket 5 percent expenditure rule in order to qualify. What should be prioritized is the benefit received by the recipients of the foundation, not the potential benefits to a donor.

We also might want to take a look at just how good a deal a charitable remainder trust is for the donor and how good a deal it is for the charity. It isn’t a bad idea to incentivize charitable giving by appealing to greed–in fact, it may be a very good idea–but we can probably negotiate a better deal for the charities. In both the remainder trust and the lead trust, the charities receive a benefit but the donors arguably benefit the most. For example, with a charitable remainder trust, you can sell an asset, such as a stock, through the trust to avoid a capital gains tax. And then you can deduct from your taxes the value of the asset that you gave to the charitable trust. Over the term of the trust (which can be in years or for your or someone else’s lifespan) you receive payments from those assets. Whatever is left at the end of the term goes to the charity but the donor, if they were fortunate to live for a long time after its creation, may have taken the bulk of those assets in annuities in addition to the tax benefits they received for forming the trust in the first place.

The lead trust operates in the reverse, giving the charity annuity payments and then the remainder of the assets to the creator of the trust (or their heirs). But it is still a good deal for the donor, especially those of extreme wealth. In some cases, a lead trust can result in a profit beyond the initial tax deduction that will eventually go to its recipient.

Another concern with this incentive is: what qualifies as a charity? The definition of charity can go beyond what we might think of as traditional charitable pursuits such as clothing the naked or feeding the hungry. There seems to be a wide range of what can be included as a charitable activity, including groups that act primarily as political special interest groups.

How the Wealthy Use Charitable Trusts

The Koch brothers’ charitable giving provides a prime example of how a charitable trust can be used to protect generational wealth. In this case, the trust established by Fred Koch, the father of Charles and David, was a charitable lead trust. A charitable lead trust allows a donor to give money to the beneficiary tax-free as long as the interest that accrues on the original amount is donated to charity for a period–in this case 20 years. This allows the heirs to keep more of the fortune left for them while at the same time ensuring a steady stream of income charity. For the Koch brothers, the charitable trust is not only protecting generational wealth, it is also used to promote a specific political ideology. A tax subsidy for this may go beyond what most Americans are willing to support, which is one reason why these methods may be worth revisiting.

Another example of estate planning to protect generational wealth can be found in the Walton family, the heirs to the Walmart empire. The Waltons have used a variety of trusts, including charitable trusts, to avoid paying estate taxes on their wealth, thus preserving it in the Walton family for future generations.

The trust most famously used by the Waltons is the so-called “Jackie O Trust,” which is a charitable lead trust. For a family with a lot of wealth and a lot of time this can be a useful tool. For example, Helen Walton, Sam Walton’s wife, set up four trusts in 2003. When she set them up the IRS set a rate of 3.6 percent, which is based on the interest rates for U.S. Treasury bonds at the time the trust is formed and how much the trust is likely to go to charity versus the heirs. But because interest rates on U.S. Treasury bonds are so low–and they have been for a while now–investments into these trusts easily beat those rates. In fact, the trusts returned 14 percent a year from 2007 to 2011. Which means that the Waltons pay 3.6 percent of this money in estate taxes, but the extra 10.4 percent that the trust earned went back into the pile and eventually go to the Walton family. They are making more money for their future estates than they are giving away.

Conclusion

Charitable trusts have a worthy goal–to promote charitable giving–and use an effective strategy to try to achieve it. It is the kind of appeal to self-interest that the original federalists would have been proud of. One that acknowledges the dearth of altruism in human nature and makes the best of it. But the balance of funds given to the charity versus the financial benefit to the donor may not be sufficient to justify the loss of tax income to the government. The regulations on this kind of giving could do more to ensure that charities get a higher percentage of the gift and that the gift is specifically used for tangible charitable activities, not for administrative costs and salaries. Appealing to a wealthy family’s self-interest in order to promote charitable giving is smart. But it can and should be a better deal for charities than it is now to justify foregone tax revenue.

These regulations also could do more to define what qualifies as a charity in the first place. Political discourse is a worthy goal in and of itself. But it may not be one that Americans want their government to promote through a tax incentive. Or, if we decide it is, then that should be separate from the promotion of charitable contributions. We can be careful about how money that we allow to go to charity rather than to government projects is being spent by taking another look at what we define as charitable. The rules for what is charitable are murky–donations to a 501(c)3 that engages in “education” are deductible, while a donation to a 501(c)4 that engages in politics is not, but the line between the two is not clearly defined. The requirements for the kinds of donations that we want to allow exemptions for should be clearer and more stringent.

If we are going to siphon tax dollars away from important government functions, through charitable tax deductions, the charities that are eligible should be ones that do charitable work that is similar to those goals. That way individuals who don’t want their taxes to support policy X but have no problem with policy Y can give to a charity that does something similar to policy Y. They are still incentivized to give but lost government revenue should not be done in vain.

Resources

Fidelity: Charitable Giving That Gives Back

Salon: 10 Tax Dodges That Help The Rich Get Richer

Mother Jones: Exposed: The Dark Money ATM of The Conservative Movement

Daily Kos: Jane Mayer’s “Dark Money” Exposes Charles Koch’s Campus Lobbying Scheme

Goodreads: Dark Money: The Hidden History of the Billionaires Behind The Rise of the Radical Right

Money Crashers: What Is A Charitable Remainder Trust- Definition, Rules & Taxation

Inside Philanthropy: Dept. of Murky Money: What the Heck Is a Charitable Trust?

Bloomberg: How The Waltons Maintain Their Billionaire Fortune: Taxes

The New York Times: Minding Your Business: The Jackie Onassis Trust, and a Variation On It

Daily Kos: 501(c)(3)s, 501(c)(4), and the Rest. A Primer

The Sunlight Foundation: The Difference Between Super PACs and Dark Money Groups

The Washington Post: How Is The IRS Supposed to Vet 501(c)(4) Groups Anyway?

Grantspace: What is a Foundation?

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Charitable Trusts: Can Greed Ever Be Good? appeared first on Law Street.

America is getting older. In 2012, 43.1 million Americans were aged 65 and older. By 2050 it will be 83.7 million, nearly doubling. The surviving members of the baby boomer generation, my parents’ generation, will all be over the age of 85 in that year.

The United States is of course not the only country with an aging population. Many countries in Europe, as well as Japan, are facing a shift in demographics. Japan’s population, in particular, has a very high proportion of elderly citizens. More than a quarter of its population is over 65. It hasn’t reached “children of men” status there yet, but increased life expectancy and low birth rates can make it difficult for a society to function.

As our population gets older we are going to have to come up with ways to take care of our oldest citizens. Not all families are equipped to handle the level of care that the elderly require, particularly those in the 85 and older age range. For this reason, nursing homes and assisted living facilities have become increasingly common. And while the care and medical attention are positive aspects of this change, there are drawbacks such as less time spent with family and less interaction between older Americans and their communities. This can leave the elderly feeling disengaged from life, depressing them and causing a negative impact on their health.

In addition to the needs of our oldest citizens, we also have the needs of our future citizens to think about. Access to affordable daycare has long been a problem and in fact has become an increasingly visible issue in the 2016 election, with people from Hillary Clinton to Ivanka Trump citing the need to provide quality, affordable daycare to working families. Many working Americans, about 44 percent of them, have both dependent children and aging parents to care for. Providing daycare for their small children is often difficult or impossible. Families without means turn to unlicensed daycares or informal arrangements with neighbors.

There may be a way to deal with both of these concerns at the same time. If both the very old and the very young need care, one possible solution is to put both of these groups together. Which is exactly what intergenerational daycare facilities, like Mount St. Vincent in Seattle, do.

Present Perfect

There are more benefits to putting the old and the young together than just convenience for those in between. Increased social interactions have a positive impact on the health and quality of life for the elderly–delaying mental decline, reducing the risk of disease, and lowering blood pressure. The elderly residents aren’t in charge of caring for the children at Mount St. Vincent and facilities like it but they still participate in activities with them, which gives them a sense of purpose. This sense of purpose is one of the key components to fighting depression and some of the negative emotions associated with getting older.

Some of the negative emotions that come with aging, such as feeling that you are no longer useful, are culturally imposed. And they are stereotypes that increased interaction between generations can help eliminate. Take a look at this TedTalk by Evan Biggs, the maker of the film “Present Perfect,” which chronicles the Mount St. Vincent facility and how it works. It’s a long video but worth watching.

A culture that promotes the idea that people who are older have intrinsic value despite, or even because of, their age means that the elderly feel valued and live fuller lives. But establishing this type of culture is something that is done over a long period of time, which is where intergenerational daycare can provide an added benefit. They teach children from a very young age that the elderly have value and get them used to interacting with people from an age group that they might not otherwise come in contact with. In pre-modern societies the generations typically aren’t segregated from each other, but in our modern society, with an increased amount of elderly people living in nursing homes or otherwise apart from their grandchildren, effort needs to be made to bring these groups together.

Interacting with the elderly also allows these children to get even more attention and enriching activities than they would if it was only the staff of the daycare in attendance. There are just more adults around to participate. Take a look at this footage from PBS on the Mount St. Vincent daycare that shows residents and children interacting with each other.

If the elderly benefit and the children benefit, then what is the problem with putting nursing homes and nurseries together?

Drawbacks to Intergenerational Daycare

The most obvious drawback is the likelihood that residents will die and the children will be forced to deal with the question of death and mortality. There really isn’t an easy way around that problem, but it may not actually be a bad thing. At some point, children learn about death and get the sense of their own mortality. No method of discovering that is completely free from trauma. The key to dealing with this isn’t to delay learning about death as long as possible but rather to handle the topic in a compassionate and age-appropriate way.

Another concern is that some elderly residents may not actually want to spend time with children. Not everyone likes little kids or wants to feel responsible for interacting with them. In an effort to provide a way to feel useful we might be providing some people with a chore instead. That is why the amount of time they spend with children or if they spend any time with them at all should be completely voluntary for the elderly participants. Some may be interested in spending the majority of their free time with the children and some may not. Both age groups need to have their own space as well as the ability to opt in and out as they choose. The caretakers for the children and for the elderly should be the staff and the structure of the facility needs to reflect that.

There is a danger of infantilizing the elderly by having the two groups together that care providers should be aware of. Although they may have the need for some physical assistance the way small children do, the elderly are not like small children and may find that being in a facility with children obscures that fact. Providers should be aware that what might be an appropriate treatment for a small child, such as using “baby talk,” can be demeaning when directed at an elderly person. While these facilities serve both age groups they should do so knowing that they are two very different groups with different needs.

Investments and Quality

These are not insurmountable challenges. Managing an intergenerational daycare that benefits both young and old may be more challenging than running a nursing home and a daycare in separate facilities. But it is certainly something that can be successfully done, as long as care providers are able to treat each age group appropriately and the system is one based on voluntary participation.

Various private facilities, such as the Mount St. Vincent facility, are already using an intergenerational model with a lot of success. But this could be an area in which the government can encourage the development of more of these facilities. If we decide that the social benefits of these facilities–the improved emotional lives of the elderly and the increased social skills for the young–are an improvement on separate nursing and daycare facilities, then we have options to encourage their use. Because our population is aging we are going to have to invest in care facilities for the elderly. For new facilities that are built by private companies, governments can offer tax incentives or subsidies if those facilities also open their doors to children. The government could also sponsor facilities and provide subsidies for working families.

In Denmark, this is something that they already do for small children, typically covering 75 percent of the cost, which has resulted in Danish women having a much stronger presence in the workforce than, for example, in the U.K. where this is not the case. A similar program could be instituted for children here in the United States. And if we really wanted to encourage intergenerational daycare we could give added subsidies to parents who send their children to one, or include residence or daytime attendance at a daycare in the benefits we provide to the elderly.

Any and all of these ideas are obviously going to involve a huge investment in terms of money as well as cultural change and human capital. But the current childcare system is a crushing burden on working families. Child care is unaffordable for many families–in Nevada, 75 percent of families can’t afford it–and often poor in quality, with only 10 percent of daycares nationally being rated as “very high quality.” Providing a tax break to families so they can purchase childcare only works if there is childcare to be purchased that can meet scheduling needs and is high quality. All children and the elderly, deserve “very high quality” care.

Conclusion

As our population gets older we need to start thinking about how we are going to care for our aging citizens. And we already are faced with a childcare crisis that requires us to come up with a new solution. It need not be one solution. In fact, a combination of encouraging employers to provide daycare, subsidies, or income percentage caps, and even government facilities could all play a role. Intergenerational daycare could be a feature that allows us to take care of both of these populations while at the same time promoting cultural values of respect for the elderly and investment in children.

Resources

Census Bureau: An Aging Nation: The Older Population In The United States

The Japan Times: Japan Census Report Shows Surge In Elderly Population, Many Living Alone

Goodreads: The Children of Men

The New York Times: Daycare For All Ages

Atlantic.com: The Preschool Inside A Nursing Home

The Guardian: What Britain Could Learn From Denmark’s Childcare Model

The New York Times: Clinton’s Day Care Plan: A Good Start, But Not Enough

Metro.co.uk: This Nursery In An Old People’s Home Is Everything That’s Right With The World

ABC News: Seattle Preschool In A Nursing Home “Transforms” Elderly Residents

Wall Street Journal: Day Care Program Groups Toddlers With the Elderly

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Intergenerational Daycare: How Do We Deal With Care Across Generations? appeared first on Law Street.

With homicide rates and gun violence on the rise, some cities are trying controversial programs in an attempt to address the root causes of crime. This spring, Washington, D.C. voted to approve a program that would provide stipends to at-risk people to help ensure that they don’t commit violent crimes. Critics characterize the program as rewarding criminals for refraining from doing what they shouldn’t be doing in the first place. They say the program is antithetical to our values as a country of laws and lawbreakers should be penalized when they do commit crimes, not rewarded when they don’t. But these programs are actually much more involved than a simple payment to stay on the straight and narrow.

Blessed Are The Peacemakers 

The D.C. program that was approved this spring, which will likely never come to pass because it won’t be funded, is based on a similar program in Richmond, California. The program would have cost $4.9 million over four years, $460,000 of which would have been in stipend payments. The entire program was taxpayer funded, unlike in Richmond where the stipends were funded by private foundations. In the video below, advocates for the proposal in D.C. give a brief explanation of how they would characterize the program.

Proponents argue that it isn’t a welfare program or a bribe. Rather it is a way to reward people who are at-risk to continue criminal activity (particularly violent criminal activity) for choosing to engage in socially positive activities instead. For example, one woman in the video gets a stipend for pursuing training for a design career. That activity might not be available to her without the stipend and by opening her up to that opportunity the stipend helps ensure her success. That, in turn, makes the community safer.

It’s unclear how much the program in Richmond, called the Operation Peacemaker Fellowship, is actually responsible for the city’s decrease in crime. But there has been a sharp reduction in violent crime since its implementation and officials note that four out of five participants in the program are no longer engaged in gun crimes. The Richmond program is more involved than merely identifying people who are likely to commit a crime and giving them an economic incentive not to. It involves continuing mentorship and requires that fellows meet goals they have set for themselves as a pre-condition for receiving the stipend. One could characterize these as payments for getting a GED or some other accomplishment as easily as they are labeled payments to not commit crimes.

This video by PBS, which is long but worth viewing to understand the program, goes into detail about what exactly Richmond did and how the stipends actually work.

As the video explains, the stipends are for a limited 9-month period, paid once a month, and are directly tied to the accomplishment of certain goals in that person’s “life plan.” While the program requires participants to stay away from gun violence, payments are conditional on a range of factors beyond simply avoiding crime. The introduction of positive activities and new positive behaviors is required.

Arguments Against

Financial incentives can be powerful tools for changing habits. The trick to using a financial incentive is to make sure that you are incentivizing what you want, and not something that could be counterproductive. For example, perversely incentivizing the breeding of rats (there’s more on that in an earlier post). With this program, there are two potentially negative incentives that we might worry about.

The first one is a classic perverse incentive when offering aid to people in particularly bad circumstances. We do not want such a program to encourage people to commit crimes, or a series of crimes, in order to be eligible to participate. If the amount of money being offered is high enough previously law-abiding citizens (or at least citizens who weren’t committing gun violence) might decide to become eligible for the program.

This fear is probably farfetched. To be eligible for the program you need to be a likely offender, so either someone likely to commit a crime or be the victim of one. Often that means having a criminal record or living in an area where there is heavy violence, or both. The highest potential payment is $9,000, which requires 6 months in the program before you’re eligible and then the payments are broken up over nine months. So assuming you get the full $9,000, it would take you 15 months and a lot of work to earn it. There are easier ways to earn money.

The second argument against the program is that by providing a financial incentive we are diminishing the “intrinsic motivation” of the fellows in the program to not commit crime. Instead of wanting to not break the law for its own sake, the motivation is now financial, which will stop when the payments stop.

This argument is a misunderstanding of how the program actually works. If the program were actually just a check made out to the would-be criminal in exchange for showing they hadn’t committed a crime, then yes, the payments would be the primary motivation and when they stopped so would the motivation. But that isn’t how the program is designed to work. The program is designed to make payments for new starting new behaviors, not for stopping old behaviors. For example, a goal in someone’s life plan might be getting a GED. That month’s payment would be made only if the GED was acquired. Not engaging in gun violence keeps you in the program but that isn’t enough to get the stipend. If that happens in the last month of your eligibility, you aren’t going to give back the GED or undo some other milestone. It is already accomplished.

Similarly, the new behaviors that are being incentivized are also behaviors that, in and of themselves, make someone less likely to commit crimes. Take the GED example once again. Increased education will lead to increased earning potential over the long term, and therefore, is likely to reduce crime. So even when stipend payments stop, the effects of achieving the required goals are ongoing.

A third argument against this program is that it is contrary to our values to reward people for not committing crimes. Again this is based on a mischaracterization of what the financial rewards are actually for. The stipend is not necessarily paid to everyone in the program who is nonviolent. Rather that is the baseline requirement for entry into the program. The financial rewards come when milestones are met or goals reached, which is a concept that is consistent with our value of rewarding hard work. It’s much more like giving an allowance to your child for cleaning their room than it is a bribe for not throwing a tantrum.

The main distinction between the D.C. program, which will probably never be implemented, and the Richmond program is that the administrative costs were taxpayer-funded in Richmond, but not the stipends. The D.C. program planned to use taxpayer money for both. Obviously, it is very easy to support a program that gives away other people’s money, but when that money is coming from your taxes, support might be more grudging. I’ve never committed any crimes and no one is, as far as I know, offering me a stipend for that behavior.

But I’m not at-risk either. Offering me a stipend would not be a good investment because I am unlikely to commit a crime in the first place. However for individuals who are likely to cause harm to society (which we can more-or-less measure in economic terms) and cost taxpayers to then incarcerate, a program like this might well be cheaper. And that isn’t even factoring in the human value of reducing death and imprisonment while increasing opportunities.

Conclusion

The headline “Paying Criminals to Not Commit Crimes” is fairly catchy but it is not an accurate description of the program proposed in D.C. or the original program in Richmond. When you introduce a financial incentive to a problem you always run the risk that you’ll encourage something you did not intend to. But just because the incentive is financial does not automatically make it bad. Greed can, in fact, be good.

Resources

Brookings Institute: Should We Pay People Not to Commit Crimes? 

Law Street Media: Perverse Incentives: Are Needle Exchanges Good Policy

Washington Post: Paying Criminals To Stay Out of Trouble: D.C. Could Be The Next City to Try Experiment

NBC Washington: Crime Still Won’t Pay As D.C. Crime Stipend Falls Dead

Time.com: Should Cities Pay Criminals To Not Commit Crimes? 

NPR: To Reduce Gun Violence, Potential Offenders Offered Support and Cash

NYTimes: D.C. Crime Bill Would Pay People To Avoid Committing Crimes

Associated Press: DC Bill Would Pay People Stipends Not To Commit Crime

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Should we Provide Stipends for People to Not Commit Crimes? appeared first on Law Street.

According to a long line of Supreme Court cases, death is different. Because it is the ultimate penalty, every aspect of a trial and sentencing are subjected to the highest levels of scrutiny when the death penalty is involved. As a society, we fall short of the high standard of care that we hope to achieve in these cases but we instinctively feel that cases involving execution are special.

Much attention is paid to the process of trying, convicting, and sentencing for capital offenses, but recently, attention has also been paid to the execution process itself. In May, Pfizer, one of the largest pharmaceutical companies in the United States, announced that it would be taking steps to block states from purchasing its drugs for use in executions. Some states feel that only lethal injection is an appropriately humane method. Some allow the use of the electric chair as well. In Utah, the use of a firing squad is once again an option. For states that do not allow methods other than lethal injection, these restrictions are creating a shortage of the cocktail of drugs involved, impacting the state’s ability to execute those they have sentenced.

Blocking states’ ability to purchase these drugs limits their ability to execute those convicted of capital crimes by that method but it merely delays these executions until other methods can be approved or the drugs are acquired some other way. It isn’t an effective method for changing capital punishment as a policy. But companies in the United States, and all over the world, have used their power to refuse to sell these drugs to protest the death penalty with mixed consequences.

The Process

Lethal injection as a method of execution is surprisingly complicated. One would think that the process of killing a prisoner would be simple, but in most states that is not the case. Executions typically involve a cocktail of three different drugs. First a sedative, typically some kind of barbiturate, to render the condemned unconscious. Then a paralytic, which affects one’s ability to breathe. Finally, potassium chloride to stop the heart.

This Forbes article goes into detail regarding the specific drugs and their effects on the human body, but essentially, the potential to cause suffering through misapplication of this method is very high. In the video below from CNN, Dr. Sanjay Gupta also gives a brief explanation of the process here, specifically in regard to the “botched” execution of Clayton Lockett.

As explained in the video, the execution process failed to go as planned even though Oklahoma was following a protocol that had been approved and is not considered to be inhumane. In fact, the Supreme Court recently upheld the protocol–specifically the use of the drug midazolam as the sedative–finding that it is not in violation of the 8th Amendment prohibition against cruel and unusual punishment. Oklahoma increased the amount of that drug used in its executions since the Lockett execution, but the essential three-step drug protocol is the same.

This is the central problem that Pfizer is trying to address with its sales ban. Like other companies and the European Union, which also bans the sale of drugs used in executions to state facilities, Pfizer does not want its products used to carry out executions. These products, Pfizer argues, were meant to promote health for its clients and using them in an execution is antithetical to its purpose as a company.

But these efforts, although they may assuage the consciences of the companies and nations that employ them, are not without cost. They make it just difficult enough for states to acquire these drugs that the process becomes less transparent and more dangerous, but not difficult enough to stop executions altogether. States have come up with various methods to circumvent these restrictions. For example, reviving the firing squad as an option in Utah is in part a response to the difficulty getting lethal injection drugs.

States also now turn to “compounding pharmacies” to get the necessary drug cocktail. These companies purchase the drugs by themselves, since the state cannot buy them due to company restrictions, and combine them for use in an execution. They aren’t regulated to the same degree as a traditional pharmaceutical company, which means figuring out how effective the drugs will be in making execution as humane as possible is more difficult. States also may try to use straw men purchasers in order to get the needed drugs.

In order to facilitate these executions by lethal injection, as opposed to another method such as the electric chair, Virginia and a few other states have proposed allowing pharmacists who assist the state to remain secret. This video provides some of the arguments against this proposal and a look at some of the legal issues surrounding it.

Allowing pharmaceutical companies who assist the state in executions to remain secret or to hide the sources of the drugs creates a host of concerns. Firstly, it prevents lawyers from getting the necessary information to challenge an execution that they feel was cruel and unusual. They won’t be able to get evidence about the protocol used in that particular execution, making it harder to stop a protocol from being repeated the future. Secondly, it prevents lawyers from finding out where the drugs are coming from before the execution as well, so they would be unable to challenge the use of drugs from a company that had a history of errors in other medical contexts.

It also eliminates the fear of being sued or criminally charged for mistakes made in the preparations of the drugs, which is one of the most powerful incentives for pharmaceutical companies to behave properly. In the absence of adequate regulation, the power to be economically damaged by a lawsuit is one of the ways that consumers can ensure product safety. Getting rid of that tool for death penalty drugs could allow the negligent behavior to go unchecked. While there are lobbying groups who oppose the death penalty that put pressure on pharmaceutical companies, there is not the same widespread social concern for this issue that would give companies an incentive to be responsible, for fear of a boycott, as there would be for a product like aspirin. The heinous nature of the crimes that these prisoners have committed means that many people aren’t concerned about whether they are executed humanely. Even in cases where the execution was extremely painful, so-called “botched” executions, it isn’t a top priority for most to change how we execute criminals.

Humane For Whom? 

Moves by pharmaceutical companies to prevent their drugs from being used in executions has sparked an interesting debate. Most would argue that they should have the right to restrict these sales, but in doing so they are actually increasing the likelihood that states will botch executions. Several executions have been delayed but a state is more likely to turn to a compounding pharmacy or get the drugs from another state than it is to revert to an alternate method of execution. So far only Utah and Oklahoma have gone outside the box–with firing squad and gas chamber respectively–that our interest in “humane” executions has placed us in. We tend to think of lethal injection as the best method because it is the most medically supervised and modern practice used. But 7 percent of executions by lethal injections are “botched,” meaning 7 percent of the time someone made a mistake that could have left the prisoner sensible to pain or prolonged their death for many minutes or hours. Although it is less often used, the percentage of botched firing squad executions is zero.

Despite its cheapness and efficiency as a method of execution, the guillotine has not seen a resurgence of popularity either, although it was originally invented as a more humane alternative to hanging as a means of execution. If the condemned were acting rationally they would choose the guillotine rather than lethal injection as their method of choice because, like a firing squad, a prolonged execution is less likely. From that viewpoint, it is a more humane method. Yet we continue to employ lethal injection because it is considered a more humane method by the observers.

There is a case to be made for pharmaceutical companies to work together with states. If these companies want to improve humane executions, while keeping the death penalty intact, working with states rather than against them might be the best option. Pharmaceutical companies have access to the best research available and thousands of drugs that are used in life-saving therapies that might be helpful in executions as well. When companies decide to restrict the use of their drugs for executions, advocacy groups generally applaud them, but they may want to work together to improve the current system first. If lethal injection is really the best method, then these companies and advocacy groups might be able to better serve the people they wish to protect by advocating for better lethal injections, even if they are continuing to advocate for an outright ban at the same time.

Conclusion 

Pfizer’s announcement has been ridiculed by many as simply a PR move to appeal to a constituency that opposes the death penalty. Especially since those who support the death penalty don’t typically care enough about it to protest a company that opposes it. It is impossible to know if Pfizer’s concerns are genuine but they aren’t alone in their attempts to ban the use of these medications in a practice they find unethical. Companies commonly take moral stands on issues and either grant or refuse their support based on those values. But Pfizer and companies like it may be doing more harm to their cause than good. Rather than forcing states to make an end-run around their restrictions, thereby making executions less transparent and less humane, pharmaceutical companies should work with states to ensure that their products are being used as humanely as possible.

Resources 

NPR: Utah Brings Back Firing Squad Executions

Death Penalty Info: State Lethal Injection

Forbes: The Pharmacology and Toxicology of Execution by Lethal Injection

CNN: Clayton Lockett Oklahoma Execution

NPR: Supreme Court Says Oklahoma’s Use of Midazolam in Lethal Injection Is Legal

Wall Street Journal: Pfizer Tightens Controls to Block Use of Its Drugs In Executions

New York Times: Pfizer Blocks the Use of Its Drugs in Executions

Death Penalty Info: Some Examples Post-Furman Botched Executions 

Atlantic.com: The Case For Bringing Back the Guillotine

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Death Is Different: Restricting the Sale of Lethal Injection Drugs appeared first on Law Street.

Police in the state of Oklahoma have recently brought the practice of civil asset forfeiture into the 21st century. Previously, if the police pulled you over, they could only seize assets that you physically had with you. But now, thanks to electronic scanners that can remove the funds from your pre-paid gift cards and your debit cards, they can seize even your electronic assets.

This change has led many to take a closer look at the law enforcement tool known as civil asset forfeiture. Civil asset forfeiture is in some ways a bizarre inversion of how we normally view crime and property. Most people think of asset forfeiture as something that occurs during a criminal proceeding. When the police charge the defendant with a crime or execute a search warrant, they can confiscate assets that they believe are profits from, or being used for, criminal activity. That is known as criminal asset forfeiture. But due to an expansion of the practice of civil asset forfeiture, the police can confiscate your assets without proving you have committed a crime or even charging you with a crime.

Flipped: How Civil Asset Forfeiture Works 

Many civil asset forfeiture cases are referred to as “highway interdiction” cases, so using that concept as an example would be helpful to understand how the process works. First, the police pull you over. Sometimes it is for a traffic violation that you have committed. In other instances, typically where civil asset forfeiture is being abused, these stops are part of a sweep of checkpoint stops. Once you are pulled over, a police officer questions you and may use a K-9 Unit to search for drugs or cash. Obviously, if they find drugs you’re getting arrested. However even if all they find is cash and they don’t arrest you (or even ticket you) they can confiscate the money.

Originally when the law that allows this–the Comprehensive Crime Control Act of 1984–was enacted, it was part of an increase in power given to law enforcement to fight the War On Drugs. Drug trafficking and other criminal activities that this law would help fight such as organized crime, deal with large amounts of cash; allowing the police to seize that cash can cripple criminal organizations. It also provides much needed budgetary windfalls to state, local and federal law enforcement agents who split the proceeds. This process, known as equitable sharing, gives law enforcement officials an incentive to confiscate assets.

They don’t, at this point in the process, have to demonstrate that the money they took had anything to do with an illegal activity. And because it is a civil, not a criminal, matter, the burden of proof that the money is innocent falls on the owner, not on the police, if the case gets to trial.

Many of these cases go uncontested because the owners of the seized assets feel it would take more time, effort, and expense than the assets are worth to pursue the matter. Since they would have to hire attorneys to help them, they are probably right. According to the Washington Post, only one-sixth of the seizures were challenged in court. However, of the cases that were challenged, 41 percent resulted in the government returning the money.

And it is a lot of money. According to the Washington Post investigation, it totals over $2.5 billion in total since September 2001. Of that, $1.7 billion was split between state and local authorities and $800 million between the Department of Homeland Security and other federal agencies In many cases, these seizures aren’t windfalls (although John Oliver did reveal that in some cases they represent a very literal slush fund) but are actually planned into the budget. This means that when creating their budgets, police departments are planning on seizing a certain percentage of the money they need. This gives the police even more of an incentive to seize assets–particularly from out of state motorists who are probably less likely to contest the seizure or create negative political consequences.

In the video below, the Institute for Justice, a libertarian public-interest law firm, explains some of the concerns with civil asset forfeiture and just how much money is involved. It also highlights the difference between civil and criminal forfeiture.

The proportion of forfeitures that are civil versus criminal is an important point that needs to be addressed. As explained, criminal forfeiture requires that the government prove that you actually committed a crime. Most would agree that we don’t want criminals to be able to keep the profits from their illegal activity and, once those assets are legally seized, they should be used for some constructive social purpose. But only 13 percent of forfeitures were criminal. That means that for every 100 people who had their assets seized, 87 of them were never convicted of a crime but their assets were taken anyway.

The video also more thoroughly explains how the process of equitable sharing allows law enforcement in states that have curtailed the practice of civil asset forfeiture to do an end-run around those restrictions. They turn over the assets that they seized to the federal government, which then takes 20 percent, and then returns the remaining 80 percent back to the state or local police department.

What Law Enforcement Has to Say

Some, of course, argue that civil asset forfeiture is a necessary tool for law enforcement officials. It gives them flexibility and power to seize money that they believe is being used to further criminal activity. Additionally, these law enforcement agencies need the money to fund their operating budgets. If we eliminated this as a source of revenue for agencies we would need to either cut funding, which could be dangerous as well as politically unpopular, or find the money somewhere else, which could also be difficult and politically unpopular. There are mechanisms to get assets back that have been wrongfully seized, so the real problem isn’t necessarily civil asset forfeiture itself but the fact that innocent parties don’t avail themselves of the process to recover their money.

Other police officers would argue differently. In this video, two former law enforcement officers who are involved in LEAP, Law Enforcement Against Prohibition, argue that civil asset forfeiture creates a system that encourages corruption and theft by the government.

The argument that these agencies need the funds to operate is flipped here. It is precisely because these agencies need the money to operate, that allowing civil asset forfeiture is so dangerous. Seizures are incentivized for these agencies. And since they don’t require proof of wrongdoing, and the likelihood of being contested is so small, there is no effective counter-incentive to keep the police from unfairly seizing assets. In fact, these agencies sometimes want to get better at making these stops and seizures. The companies BlackAsphalt and the 4:20 Group train law enforcement to make successful “highway interdiction” stops.

Possible Solutions For Civil Asset Forfeiture

The question then becomes how do we give law enforcement the tools that they need to safely and effectively do their jobs while at the same time protecting citizens from government overreach? One possible solution is to completely eliminate civil asset forfeiture and only allow the criminal variety. This is an attractive option because the incentives for the police to seize assets wouldn’t be the main incentive at work. In civil asset forfeiture, they are able to take assets without proving, or even charging, someone with a crime so their only incentive is to seize assets. In contrast, criminal asset forfeiture requires a criminal conviction, so the first step in the process requires police to legally charge and convict an actual criminal. Their incentive, first and foremost, is to fight crime. The assets they get to keep, if successful, are a bonus.

Another potential solution is to decouple the financial incentive from civil asset forfeiture by funneling any assets seized to something totally separate from the police department or even law enforcement. For example, instead of the money going to the police department (or to the federal government and the local police through equitable sharing) the money could be sent to the local school district. This would allow the practice to continue but would help to reduce the direct payoff that police officers have when they seize assets, which in turn could reduce the number of stops they make. Local governments would have to ensure that the school budget money wasn’t then just reduced and given to the police to decrease the incentive to take assets. But if carefully structured, this could allow civil asset forfeiture to exist in the rare instances where it may be legitimate, but lessen the incentive to prevent abuse.

DUE PROCESS 

A third option, and one that the House Judiciary Committee believes will cure many of these ills, is the Deterring Undue Enforcement by Protecting Rights of Citizens From Excessive Searches and Seizures Act of 2016, or DUE PROCESS Act. It is supported by a variety of organizations, including the ACLU, and would greatly reform the civil asset forfeiture process.

Most of the proposed reforms focus not on the initial seizure of the assets but on the court process to reclaim them when they have been seized. The DUE PROCESS Act would alter the burden of proof in these cases, placing it with the government instead of the claimant. It would create a right to counsel and allow a claimant to recover attorney’s fees if successful. Since cost is one of the most significant obstacles to people who want to contest the forfeiture of their assets, this would increase the costs associated with wrongfully taking assets. It would also require that there be a proven connection between the property and the offense committed. While it wouldn’t fully eliminating civil asset forfeiture (you still wouldn’t need a criminal conviction to have your property taken) it would make it much more like criminal asset forfeiture in our legal system. All of these reforms would help to reduce police incentives and ability to seize assets while also encouraging people who have a valid case to pursue it in court.

Conclusion

We can and should give law enforcement a variety of ways to fight crime. Civil asset forfeiture is a powerful tool that law enforcement naturally has used to their benefit. But they have not only used it against convicted criminals, who make up a scant 13 percent of those who had their assets seized by the police, but also against ordinary citizens. Some of whom may have committed a civil offense, and many of whom were doing nothing more than driving with cash.

Reforms to civil asset forfeiture, either to eliminate it all together or to alter the balance of power in the relationship between citizens and the police, are necessary to ensure that this tool is no longer abused. But until it is reformed, when driving in Oklahoma you may want to use Bitcoin. 

Resources

The Register: Oooooklahoma! Where The Cops Can Stop And Empty Your Bank Cards–On Just a Hunch

Institute For Justice: Policing For Profit

The Future of Freedom Foundation: How Police Confiscation is Destroying America

The Heritage Foundation:Civil Asset Forfeiture: 7 Things You Should Know

The Washington Post: Stop and Seize : Aggressive Police Take Hundreds Of Millions Of Dollars From Motorists Not Charged With Crimes

ACLU: Asset Forfeiture Abuse

Generation Opportunity: Civil Asset Forfeiture: The Time For Reform Is Now

Bitcoin.com: New Civil Asset Forfeiture Tool Makes Bitcoin Even More Powerful

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Reverse Robin Hood: The Benefits and Hazards of Civil Asset Forfeiture appeared first on Law Street.

When I last worked in an office (many moons ago) I was one of the millions of workers who are exempt from overtime. I did have some managerial responsibilities but I would not have characterized my job as “executive” or “professional.” Anyone with some common sense and a calendar could have effectively done the work I was doing. But because I was above the $23,660 per year threshold I was not eligible for overtime pay for the extra hours I worked. Depending on the season (my work ebbed and flowed dramatically based on the school calendar), I could work 60 hours a week and still be scrambling to get it all done; I could also be hunting for projects outside of my department just to make up a full work day. I started to think that I MIGHT be better off as an hourly wage worker because then at least I would be getting paid for how much I was working. But under the system, I was sometimes working 20 hours a week for free.

The recent changes in overtime rules are designed to address this concern for many employees who find themselves in a peculiar middle place. They are working more than 40 hours a week, but instead of being paid time and a half for the time they put in over 40 hours, they are barred from compensation for those hours because they make more than $23,660 a year or $455 per week. They are working for free. The recent changes to overtime rules–which will go into effect late this year–will raise the threshold from 23,660 to $47,476 per year. Meaning that all the workers who earn between $23,660 and $47,476 will now be eligible for time and a half–one and a half times their regular wage–for each hour they work beyond the 40-hour work week.

Are these workers going to be better off? Or are we going to place such a burden on employers that we actually do harm to these employees?

All About That Base

Nothing is more exciting than the phrase “let’s do some math!” but to understand the debate surrounding overtime we have to look at the numbers.

The previous $23,660 threshold, which was established in 2004, works out in the following way. Let’s say you have a job where you are right at the $23,660 and not eligible for overtime. If you are working 40 hours a week then the magic of math breaks that down $11.38 an hour gross ($23,660 a year divided by 52 weeks per year divided by 40 hours each week). That’s better than the federal minimum wage. But if you are working 60 hours a week for that same salary with no overtime eligibility, you’re only making $7.58 an hour. That’s barely more than the $7.25 federal minimum wage and in many states it’s actually lower than the required minimum.

If your $23,660 a year job is being a manager at a retail store and you’re working 60 hours a week with no overtime, there is a good chance that you are making less than the employees that you manage. Which seems inconsistent with the whole idea of managers being worth extra pay for their expertise and responsiblities and unfair that you are working for less than the minimum wage or working for free. Either way, you slice it that’s a fairly raw deal.

Under the new rules, which raises the threshold to $47,476 per year or $913 per week, many salaried workers are now entitled to overtime pay. In the same scenario as before–with a worker earning $23,660 per year–he or she would be paid the same 11.38 for a 40 hour work week. But for a 60-hour work week, that worker would make an average of 13.27 per hour, when you include the 20 hours of time and a half pay. That is a considerable improvement from the $7.58 per hour that he or she would earn without overtime.

In the video below, PBS NewsHour gives a brief explanation of how the overtime regulations currently work and what the proposed changes will do for workers.

How Businesses Might Respond

There are a few points to unpack from that video in terms of the arguments and counter-arguments for overtime. The reason that some people don’t think this is a sound policy is because employers are likely to react in several ways which could have negative consequences for employees.

The first way they might react is by reducing hours for workers who would be newly eligible for overtime and hiring multiple part-time workers instead in order to keep their labor costs about the same as they were before the change in the rules.

But is this necessarily a bad thing for the existing workers? Maybe not. Currently, a worker who is putting in 60 hours a week for a salary of $36,000 a year won’t be losing any money if their company reduces them to 40 hours a week and then hires someone else to work for 20 hours a week to avoid paying overtime. In fact, if you think about your time as having a monetary value you are getting more money because you are getting 20 extra hours a week back in time. The trickier scenario is a company that decides to change from one employee working 60 hours a week to two employees working 30 hours each–while also reducing the salary of the original employee or paying them on an hourly basis. This would, in fact, be a reduction in that worker’s total wages from $36,000 to about $27,000 per year (assuming that the hourly rate was the same).

That’s a significant decrease and a trade that many employees might not want to make for 30 extra hours a week. In a job market that had more positions available, those individuals would be able to get a second job for 30 hours a week. If it had a comparable salary they would actually be doubling their income. But in an economy where there isn’t a second job to take on with your extra time, this could be financially devastating.

In fact, some economists argue that increasing the threshold for overtime eligibility would be a good thing overall because it will help create jobs. Some employers will choose the second option of splitting one job into two. This change could be a mixed blessing for workers–a source of more jobs even if it might depress wages.

Another way employers might respond is by increasing salaries for workers to the new $47,476 per year cap, thereby rendering them ineligible for overtime. For workers who are close to that level, it may just be cheaper for employers to pay an extra few thousand dollars a year than to deal with the added hassle of calculating overtime pay or the added expense of paying it. Workers in that situation will get a raise.

In the video below, the Department of Labor explains the history of overtime as well as the recent rule change:

Obviously increasing labor costs places a burden on employers and some employers will have difficulty accommodating. The argument against increasing the overtime threshold essentially boils down to not wanting workers to lose what they already have in an effort to get a deal that is fairer. Instead of elevating worker wages, changes in overtime may decrease worker pay overall and alter the flexibility that some workers enjoy.

One of the benefits of being overtime exempt, some argue, is that you have more freedom from your employer to work a 30-hour week to make up for the 60-hour week you had to work. That was my experience when I was working–although culturally at the office it may breed resentment when other employees see you leaving early or not working Fridays if they don’t also see you working late or doing some of your tasks from home on the weekends. But for many workers, the mythical 30-hour work week never comes and so employees have essentially just charitably donated hundreds of hours of their time to their employers. Or they have worked as “managers” for less than the minimum wage.

The greatest danger that this change in overtime rules presents is that employers may cut workers and not replace them, making the unemployment situation worse. For some companies that will undoubtedly be the case and these businesses will take hits in productivity and be run by skeleton crews. But it is unclear whether, on balance, the changes will do more harm than good or more good than harm. And it is hard to anticipate how many workers will be cut versus how many will get raises. It’s even harder to know beforehand whether this change will be worth it for the overall health of the economy.

Conclusion

If you look at the numbers an increase in overtime benefits is undoubtedly helpful for those workers who currently are putting in more than 40 hours a week at their jobs. They will be more fairly compensated for the hours they work. But the larger effects on the economy are tricky to determine. Depending on how employers react, and how much of an increase in labor costs employers can absorb, this change can have serious negative impacts as well.

There will undoubtedly be some job loss and wage depression, as well as job gains and wage increases. As we get closer to the December 1 deadline when this change will go into effect, there will probably be more predictions about how this will ultimately shake out. But the fairness argument that workers should be paid for the time that they work when they aren’t actually making the high salaries for an executive or professional role is hard to refute.

Resources

U.S. Department of Labor: Final Rule: Overtime

U.S. Department of Labor: Questions and Answers

US News: Are The New Overtime Rules About To Boost Your Paycheck?

The Atlantic: Overtime Pay For Millions of Workers

Bloomberg: Obama’s Overtime Rule Defies Econ 101

The Hill: Senate GOP Files Motion To Roll Back Obama Overtime Rule

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Overtime Changes: Is it Time for More Time and a Half? appeared first on Law Street.

One of the tendencies people have when combating a problem is the tendency to over-correct. Rather than taking a moderate approach in the first place, they move from one extreme to another. Our drug and alcohol policy sometimes appears to be following that same tendency. Like the boom and bust of capitalism, we put cocaine in our soda and then switched to putting those who use the drug in jail. In the current climate, we have gone from drug companies and doctors promoting opioid painkillers as a life-saving innovation to defeat pain, to restricting the drugs we can use to combat addiction out of fear that it might contribute to the problem even more.

It is of course not an either/or proposition, yet we currently don’t place restrictions on opioid painkillers in the way that we restrict drugs used to treat those who are addicted to opioids. The fear is that if people have unlimited access to drugs like Suboxone they will abuse them rather than use them in recovery. Suboxone is a drug that can mimic some of the effects that opioids have on the brain in order to diminish cravings for and withdrawal from actual opioids. Addicts might also sell drugs like Suboxone to others. We’ve seen this happen with prescriptions for other drugs–in fact, it continues to be a major contributor to the opioid epidemic–so it is not surprising that this fear exists.

Some people will undoubtedly abuse access to Suboxone and drugs like it, the same way that some people abuse cough syrup, which is now restricted in many places. But do the potential abuses of Suboxone and other opioid addiction treatment drugs justify how we restrict them? Or are they such a necessary tool in combatting drug addiction that we should look for alternate means to prevent their abuse so more people can utilize them?

The Devil In the Details

To better understand restrictions on drugs like Suboxone we first need to understand exactly what these drugs do and how they can be dangerous.

When you take an opioid painkiller the drug activates the opioid receptors in the brain, which both blocks pain and creates the high associated with opioids. The more you take the less it becomes about reducing pain and the more it involves achieving that high. Eventually, the brain becomes accustomed to the opioid’s presence and you need more to get high, or even just to maintain normalcy and avoid withdrawal. Because of the way the body processes opioids, once you are chemically addicted to the drug you’ll never get rid of that reaction to it; your brain is permanently wired that way. Many people can and do quit using opioids and avoid addictive behaviors, but the inability to reset your brain chemistry to where it was originally is one of the things that makes opioid addiction particularly difficult to overcome.

Drugs that activate these opiate receptors in the brain are referred to as agonists. A full agonist opioid is a drug like heroin. An antagonist is a drug that attaches to the opiate receptors in the brain but does so without activating them, therefore blocking the opioid from attaching to those receptors. Antagonists, such as Naloxone, are typically used to reverse opioid overdoses and can have no opioid effect at all.

Why People are Uncomfortable With Suboxone

The trouble with Suboxone, in terms of getting skeptics’ approval to use it for addiction treatment, is that while it acts as an antagonist (it blocks opioids) it also acts as a partial agonist. Meaning that it works the same way an opioid does but to a lesser degree. So Suboxone will have some opioid effect–such as suppressing withdrawal symptoms and cravings for an addict–without providing a high.

It is the unique nature of drugs like Suboxone, which are both antagonists and partial agonists, that makes them so effective for the treatment of opioid addiction. They are able to deal with the symptoms of withdrawal and cravings that make addiction recovery so difficult as well as prevent addicts who relapse from getting the chemical rewards for their slip, which keeps that behavior from reinforcing the addiction. But it has led some to argue that giving Suboxone treatment to addicts is simply replacing one addiction with another. This same rationale is what limits maintenance treatment in drug courts, which you can read more about here. It’s an understanding of addiction that focuses on willpower and personal responsibility–which are important elements in combating addiction–but doesn’t give full credit to the best practices determined by the science of how certain drugs affect the body.

This video introduces some of the reasons–from the perspective of an addict and from medical professionals–why treatments with drugs like Suboxone are so effective.

Why Suboxone?

In fact, using partial agonists like Suboxone in treatment isn’t just one effective treatment option, it is the most effective treatment option. Opioid addicts who use the more common rehabilitation model of a 12-step Narcotics Anonymous style program without using opioid replacement medications are twice as likely to have a fatal overdose compared with addicts who use these medications. There have also been numerous studies that show that using these medications leads to other improvements in quality of life and reduces HIV transmission.

This is not to say that psychological treatments and communal supports such as Narcotics Anonymous are not a key component to addiction recovery. But they are often not enough to help most opioid addicts. Most opioid addicts would benefit from access to medications as well. This is like treating a cardiac condition by reducing stress through yoga and getting a pet. Both of those things are treatments that can help in your recovery but are part of a more complex treatment plan that includes other lifestyle changes and medication. A drug addiction recovery plan that dismisses medication as a potential tool is, according to many medical professionals, as unethical as a treatment plan for heart disease that ignores medication.

Regulations and Restrictions

Because of the fear that addicts will personally abuse or sell Suboxone and other partial agonists, federal regulations restrict the amounts that doctors can prescribe. In their first year practicing, doctors can treat 30 patients, and in subsequent years, they can treat 100 patients. This may seem like a lot, but in communities with thousands of addicts needing treatment and few doctors, these restrictions can prevent many people from getting these medications. Senators Ed Markey and Rand Paul introduced a bipartisan bill last year, known as The Recovery Enhancement for Addiction Treatment Act, which would allow nurse practitioners and assistants to administer these drugs, raise the first year cap from 30 patients to 100, and create a pathway for certain doctors to eliminate the patient cap altogether after their first year.

Recently the TREAT Act passed through the HELP Committee (Health, Education, Labor and Pensions). In the video below, Senator Rand Paul gives a brief explanation of why he is promoting this policy change:

Restrictions on Suboxone reduce its supply, and therefore, curtail its potential for abuse. But since there is no similar restriction on the amount of painkillers that doctors can prescribe–which is a huge contributing factor to the massive increase in opioid addiction and the sale of opioids–it makes little sense to restrict Suboxone. The use of Suboxone and other partial agonists won’t actually produce a high for an addict so there is less incentive for an addict to try to obtain Suboxone illegally when he or she could try to get full agonists and get high.

There are some drugs that can be used to replace opioids that produce similar euphoric effects, in a lesser quantity, but not all of them do. At best, the use of Suboxone will prevent withdrawal symptoms and block a full opioid from taking effect, which is exactly why they are helpful to addicts trying to quit their addiction. So while they could be misused and sold, their misuse isn’t damaging in the same way that misusing a prescription for Vicodin would be.

A better strategy for curtailing drug abuse would be to regulate the amount of full agonists that can be prescribed; if we are going to regulate anything. But this regulation would run into some of the same concerns that the current regulations for Suboxone do. Rather than encouraging or requiring proper training for those who are allowed to prescribe these drugs, regulations place a one-size-fits-all rule in every community. There may be some doctors in areas that have more patients in real need of opiates, just as there are communities where the demand for Suboxone has far outstripped doctors’ ability to provide treatment. Like the current regulation of Suboxone, regulations for painkillers would also reduce the supply of the drugs–but placing restrictions that are too harsh on painkillers reduces everyone’s ability to get them–even those who legitimately need them.

Conclusion 

Regulations on drugs like Suboxone are an understandable reaction to a situation that has many lawmakers panicked. If the supply of drugs is causing a problem, then cracking down on the supply of drugs seems like the solution. The idea that the answer to bad drugs may be MORE drugs seems counterintuitive. And it is a tough sell in a culture that has been trained to treat addiction more like a psychological or spiritual dilemma than a medical one.

But drug addiction is a complex problem with psychological and medical components. Ignoring either of those elements makes combating addiction much more difficult and places more barriers in front of those in recovery. Changes in policy that allow patients to get individualized treatment for their illness, versus hoping you win the Suboxone lottery, will ultimately lead to better outcomes. Doctors do need appropriate training to deal with the specific issues involving opioid addiction. The medical profession has much to answer for when it comes to the promotion and prescription of unnecessary painkillers. But throwing the baby out with the bathwater and restricting their ability to prescribe effective treatment just because they had a hand in causing the disease is not effective.

Resources

The Washington Post: Getting Pain Killers Is Easy. Getting Help For Pain Killer Addiction Is Hard

The Huffington Post: Senate Bill Would Dramatically Alter Treatment For Heroin Addiction

Senator Edward Markey: TREAT Act One-Pager

The Daily Beast: Why Drug Rehab Is Outdated, Expensive and Deadly

Serenity Recovery: Kentucky Just Passed A New Law To Help Addicts

WJHL: New Tennessee Law Puts Restrictions on Suboxone, Subutex Prescribing

NAABT: What’s This Agonist/Antagonist Stuff?

PEWCharitableTrusts: States, CDC Seek Limits On Painkiller Prescribing

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Suboxone Restrictions: Is it Possible to Fight Fire with Fire? appeared first on Law Street.

Back in the day, entering into a profession could be very challenging for newcomers. This was particularly true in European countries during the Middle Ages when each profession developed its own organization for members to mutually assist each other and control entrance into the field. These organizations were called guilds and functioned as part union/part cartel. Those lucky enough to belong to a guild reaped benefits like a pension for his family and networking opportunities. This also regulated the quality of the services the profession had in a given locality, which benefitted consumers. For people who wanted to become part of a profession but were not born into a family that held a spot or were otherwise well-connected, guilds functioned as a barrier to entry. This kept competition tightly controlled and promoted the interests of existing members at the expense of customers and those seeking entry.

Today there are many professions that require licenses and testing in order to gain entry–most of us are familiar with the licensing requirements for doctors and lawyers. Take an example I’m intimately familiar with–there are many hurdles to jump through in order to become an attorney. First law school, which can carry a hefty price tag. You then need to take an ethics exam and the bar exam if you would like to practice. The fees for these exams, if you count a review course as part of the cost, can be thousands of dollars. After that, you have to pay for the license, which varies by state, and bar dues, which also vary. The license also doesn’t easily transfer from one state to another. So if you wanted to join the bar in a new state and you haven’t been practicing for a number of years, you would have to take the bar exam again and pay the fees to enter into that state’s bar. For many, the cost of getting licensed in multiple states is prohibitively expensive.

The rationale behind occupational licensing is to control the quality of the services for the customer. With the medical profession, this argument is particularly compelling because of the amount of knowledge required to practice medicine safely and the nature of the risks involved. Consumers can’t really comparison shop for a doctor the same way they can for other services so it is critically important that all doctors have a minimum level of competency. And since other doctors are the only ones who would know if a doctor is competent or not, the medical profession to a large extent controls entry and polices itself. The same is true of many other professions.

But the argument in favor of occupational licensing requirements and regulations, made in the name of consumer safety, makes less sense for some other professions. It may take years of training to become a good interior designer but it probably does not require multiple years of training, multiple exams, and licensing fees to become a safe one. And in an aesthetically based profession like interior design, customers are very well suited to comparison shop for what they want and bargain for less than ideal services at a better price if they choose to. For some of these professions, licensing laws may be functioning not to keep customers safe but to protect profits of the profession’s existing members.

Increasing Requirements

According to a White House paper, there has been a dramatic increase in the number of professions that now require some form of licensing. About one-quarter of all workers in the United States now need a license to practice their trade, which is a five-fold increase from the 1950s. But this increase isn’t because Americans are working in different professions than they used to–rather, more fields are now requiring licenses.

The video below should be taken with several grains of salt, as it is designed to advocate against occupational licensing requirements, but it provides a good framework for the kinds of professions that now need licenses.

Licensing requirements for many professions can have a significant impact on the people seeking to join them. If you want to be a security guard, for example, it matters a great deal which state you are looking for work in. If you live in Michigan, it will take you three years to obtain your license while in other states it will only take you 11 days. For people that move across state lines–take military families, for example–they need to meet the licensing requirements in their new state, which can cost them time and money. As this video from John Stossel suggests, licensing requirements may also price out minorities and the poor from entering professions that require a license and are not always tied to protecting consumer safety.

These regulations can also depress wages for the workers who are not part of the profession and increase the cost of services to consumers. The White House paper cited earlier estimates a 10 to 15 percent decrease in wages and a 3 to 16 percent increase in pricing. This increase in pricing does not necessarily correlate with an increase in safety or the quality of the services. The fact that many of these licensing requirements do not necessarily have a positive impact on services is one of the strongest arguments for eliminating or reevaluating certain licenses.

Why Do We Have Occupational Licensing?

If these licensing requirements are not promoting safety and controlling quality, why do we have so many of them? Take a look at this explanation:

In the case of the medical profession and other professions that really do present safety concerns, these licensing requirements can be beneficial for consumers. Most people do not have the expertise to evaluate whether an electrician is safely performing the work in their home or if it has been done well. The ability to research a company on the internet before you employ its services gives you access to its reputation, but it is still helpful for people looking to hire an electrician to know that the candidates have had some training. It allows a consumer to be confident in the electrician’s ability to safely provide the service.

But for a profession like hair braiding, the consumer’s ability to assess the quality of the services and its safety is very high. You can immediately determine if you are pleased with the quality and there is very minimal risk to your safety. Any risk is probably one that a consumer would be able to identify and avoid. And in an industry like this, the ability to find out a professional’s reputation for quality and safety on the internet or elsewhere beforehand can eliminate a lot of providers who give poor service.

Many of these licensing requirements are not related to consumer safety or the quality of services but to the advocacy power of the professions that require licenses. As Milton Friedman points out in his speech, the best way for the profession to keep the cost of their services high is by limiting the number of people providing those services. By creating laws that fine individuals operating without a license, the cost of providing that service may be too high for outside competitors. This lack of competition protects the existing companies. It is often the professional associations who lobby to have these licenses imposed and fight efforts to take them away, not consumers.

In some cases, members of a profession are the best-qualified people to determine if another practitioner is performing the work safely. Using the medical profession once again as an example, in cases that are highly technical (such as a surgical procedure) it would be difficult for someone without medical training to figure out if the procedure was done negligently or not. For this reason, doctors often work as expert witnesses when they review themselves or in court. A lay person just would not have the knowledge to make those determinations.

Because of this, members of the profession are given considerable leeway to determine the requirements to obtain a license. The professional associations in each state lobby for the regulations that they think are necessary and may even help legislators craft the language of licensing requirements, or take charge of them entirely. This gives the professions a tremendous amount of control over their industries. It is also one reason why licensing requirements vary widely across different states. It isn’t that the process of braiding hair is much more dangerous in states where licensing is required than it is in states where it is not; it is because the states that require licensing have a more concerted effort by existing hair-braiders to impose and maintain a licensing requirement.

Conclusion

Some occupational licenses make a lot of sense to have. Professions where safety is an important concern and where it is difficult for consumers to judge the competency of the people they are hiring are ones that should have a base requirement for those entering the profession. But many of the professions that require licenses are ones in which those licenses do not protect consumers. Instead, they protect the members of that profession from more competition at the expense of job seekers and at a cost to the public. Licenses that are not tied to consumer safety should be reevaluated in order to ensure that they are necessary and that their purpose is to promote safety and quality.

For example, a license for a cosmetologist that requires 2,000 hours of training has probably exceeded whatever legitimate safety concerns may exist in the field. The same goal of promoting consumer safety could perhaps be met with a much less onerous requirement–such as a shorter certification process that focuses just on hygiene and safety practices. Licensing fees that are paid to state professional associations but are not payments for the costs of classes and tests could also be eliminated without adversely affecting public safety.

Reevaluating these licenses and eliminating the ones that do not benefit consumers will create new opportunities for workers to enter professions and for entrepreneurs to start businesses. It would also decrease the prices consumers face for many services. If there are safety concerns in an industry that do require regulation they should be dealt with, but many of these licenses and requirements could likely be eliminated or reduced without reducing consumer safety.

Resources

The Institute for Justice: License to Work

WhiteHouse.gov: Occupational Licensing: A Framework for Policymakers

FiveThirtyEight: Licensing Laws Are Shutting Young People Out of the Job Market

U.S. News: Short Sighted Policy: Studying Opticians Shows Occupational Licensing Doesn’t Help Consumers

Bureau of Labor Statistics: The De-Licensing of Occupations In the United States

Foundation For Economic Education: Does Occupational Licensing Protect Consumers?

Politico: It Takes 890 Days to Become a Barber in Nevada 

Forbes: Citing Adam Smith and Milton Freedman, Obama’s Economic Advisors Back Occupational Licensing Reform

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Have Occupational Licensing Laws Gotten Out Of Control? appeared first on Law Street.

We spend more money making pennies than pennies are worth. Right now making a penny costs 1.7 cents. Yet we continue to mint more pennies every year, costing the government millions of dollars. Both pennies and nickels cost more than their face value to produce. In 2014, the United States spent $132 million on manufacturing 8 billion pennies. That does not even take into account the added costs of using pennies, like the time it takes to find them in the bottom of your purse or pocket and for the cashier to count them. According to the organization “Citizens to Retire the Penny” the economic drain every year from the penny is almost $900 million dollars.

So why on earth are we still making pennies? The two main arguments for continuing to produce the penny are the impact that eliminating them would have on pricing and the penny’s role in charity fundraising. If there were no one-cent coins in circulation, businesses would likely round the prices of their goods up to the nearest nickel, raising costs for consumers. And charities that promote penny drives would suffer because there would no longer be coins that people don’t want and are therefore willing to give to charities. The third argument, which is more sentimental than practical, relates to President Lincoln–many simply don’t want to eliminate the coin because it commemorates him.

Throughout our history, the coining of money has had political ramifications that go far beyond whose face we put on our currency. Changes in the supply of money and who has access to it have the power to promote the interests of a particular class and stimulate sectors of the economy. Eliminating the penny may be efficient, but it could also have unforseen consequences for the economy.

The Penny Debate

The video below does a great job of being both an educational and entertaining introduction to the many practical, efficiency-based arguments in favor of eliminating the penny. Featured on Freakonomics.com by Stephen J. Dubner–who seems to be on an economic-moral crusade to denounce the penny–it not only shows the base numbers of how much money we are wasting by manufacturing pennies but also the added costs of keeping them around.

The numbers in favor of eliminating the penny are pretty clear. Firstly, pennies cost more to produce than they are worth, which right there should give those who are at least neutral on the penny some food for thought. Secondly, they aren’t even worth your time to bend over and pick them up, let alone the 120 million of hours of time per year that are spent counting pennies in cash transactions. In fact, when John Oliver delivered his own anti-penny rant he looked at news stories with people who actually would not bother to pick up free pennies. At first glance, one might think these people are wasteful and foolish to not pick up free money. But they are actually making a smart economic choice because the small amount of time it would take to pick up the penny is worth more to them than the penny itself.

Some people even throw pennies in the trash. Actually, a lot of people will throw pennies in the trash (2 percent actually admit to it, which makes me think that the number may actually be higher). Even for those who don’t literally throw pennies away, many will still not spend them. This means that pennies, once created, don’t circulate as much as other coins. It also means that we make more of them so that businesses can continue to have shiny new ones.

Proponents of the Penny

The penny does have its advocates. The group Americans For Common Cents advocates for the continued manufacturing of the penny. According to a 2006 Gallup survey, 55 percent of Americans said that pennies were useful, versus 43 percent who said they were not; 2 percent had no opinion (they could be the same 2 percent who end up throwing them in the trash). But Gallup broke this down even further by income per household. Lower-income groups are more likely to think the penny is useful. For example, households that make less than $30,000 a year have a 65 to 34 split in thinking pennies should be kept, while households that make $75,000 a year or more had a 45-53 split in favor of eliminating the penny. It isn’t until you reach that income strata that the anti-penny opinion takes the lead.

Americans For Common Cents cites the effect on consumers, particularly low-income Americans, as a reason for keeping the penny. Businesses would have to round to the nearest nickel if there were no pennies and therefore consumers would have to pay more. Some people might not notice, but to low-income Americans, that might actually make a difference. In its own research, Americans For Common Cents found that 73 percent of Americans were concerned that eliminating the penny would increase prices.

There is also a concern about the potential effect on charitable giving. Most of the arguments focus on gifts to charitable organizations, rather than giving to individuals, but panhandlers and homeless individuals receive loose change from people and might be adversely affected by pennies going out of circulation. Large charities like the Salvation Army also collect loose change and rely on people donating in pennies. The unpopularity of the penny may actually be a good thing for these charities, prompting people to donate them rather than throw them away or spend them. Other countries that have abandoned the penny, notably Canada, have not seen a drop in charity donations, but they may have other customs that don’t rely as heavily on penny donation to support charities.

Lincoln, Lobbying, and REAL Money

Keeping the penny has as much to do with preserving the great American tradition of specialized lobbying groups as it does with promoting the image of Abraham Lincoln. In this CBS Morning News segment, the reporters interview the head of Americans For Common Cents, which uses the mystique of Lincoln to promote the pro-penny position.

Americans For Common Cents gets a lot of its funding from Jarden Zinc, which manufacturers the zinc discs that become pennies. (fun fact: pennies are made of zinc and only covered in copper since copper is much too expensive). Jarden Zinc. has a very real financial interest in the United States continuing to produce pennies, so it spends money to promote this position. It spent $140,000 on lobbying efforts and was later awarded a contract by the federal government worth $48 million.

Lobbying efforts like this are found on nearly every issue in American politics, many of which involve much more money. When it comes to getting rid of the penny, Jarden Zinc is very passionate, while most of us have not considered the issue much at all. And if we have, we don’t feel that it is an issue of grave national importance and so no action is taken on it, allowing the status quo to continue.

There may be another compelling reason to keep pennies that Americans for Common Cents hasn’t touched on much in their advocacy efforts. Our monetary system was initially based on precious metals. Paper money (fun fact: paper money is actually made out of linen and cotton–not paper) became a stand-in for precious metals like gold and silver, but early on the money was still backed by gold and silver. Paper money was more convenient to use than carrying around bars of gold with you but the money had a bar of gold somewhere that gave it value. A dollar was actually worth something tangible.

Our currency is no longer backed by precious metals, except for pennies and nickels because those are actually made from semi-precious metals. But these are substances with value. It’s illegal to do it, but you could melt down a bunch of pennies and get zinc out of them (and a small amount of copper), which you could then sell. And because the zinc in the pennies is worth more than the pennies themselves that would be a great idea–if the government hadn’t made it illegal precisely because people started doing that.

Keeping pennies avoids the potential issues for charity donations and price increases but it also, according to Brian Domitrovic of Forbes, is a symbol of a monetary policy that we should encourage. One that responds to market signals and promotes a more healthful economy. In his view, keeping the penny, even if it is inefficient, is worth doing for that reason.

Conclusion

The penny has great sentimental value to many Americans. We have countless aphorisms about pennies. About picking them up, which we don’t do. About saving them, which we also don’t do. Even about giving them to people for their thoughts–which Stephen Dubner from Freakonomics considers to be an insult. But what we don’t have for pennies is a policy that deals in rational economic terms with the cost-benefit of producing and using them. Concerns about the impact on charities and on pricing are hurdles that our neighbors to the north and around the world have dealt with when abolishing their one-cent coins. We merely lack the political will to confront it as an issue because to most Americans pennies are unimportant, but to some, they are worth millions. It is literally a case of being penny wise and pound foolish.

Resources

Primary

United States Mint: 2015 Annual Report

Additional

History Matters: Cross of Gold Speech

Freakonomics: Pennies

Huffington Post: Get Rid Of The Penny 

The Odyssey Online: Why Are Pennies Still A Thing?

The Wall Street Journal: Easy To Lose and Expensive To Produce: Is The Penny Worth It? 

Fortune, Don’t Mess With the Penny Lobby

Retire The Penny

Americans For Common Cents

Gallup: Penny Worth Saving Say Americans

Forbes: Don’t You Dare Eliminate The Penny

 Editor’s Note: This post has been updated to make the cost of producing a penny clear. 

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Should We Get Rid Of The Penny? appeared first on Law Street.

In the beginning (way back in the time of rabbit ear televisions) the Federal Communications Commission licensed wireless spectrum to everyone, professionals and amateurs alike. Licensing spectrum prevents overlap and interference between television and radio channels, but there was plenty to go around when broadcast technology was in its infancy, so there was little concern about running out. Networks like ABC and CBS were given spectrum, but so were government agencies like the Department of Defense, which still controls a large portion of radio spectrum. Smaller broadcasters, who operate on a local rather than a national level and primarily in rural areas, were also given spectrum access.

Then technology advanced and the amount of available spectrum is no longer enough to meet the demand. This is primarily driven by the proliferation of smartphones and the growing demand for wireless data. Like land in the Wild West, which was once so prevalent that it could literally be given away, wireless spectrum is now prime real estate. Wireless companies, cell phone carriers, and broadcasters are all eager to get their hands on more of it.

To combat this problem–which with the increasing demand for smartphones and streaming services is going to get worse before it gets better–the FCC proposed an incentive auction, which began at the end of March. The auction is sufficiently complex to warrant going through it step by step, but essentially, broadcasters have too much spectrum and wireless service providers don’t have enough. The FCC is going to act as a middleman to help facilitate the transfer of broadband spectrum from broadcasters to wireless providers to help feed their increasing demand. It is the first time that the FCC has tried an auction of this kind and it has the potential to yield billions of dollars in revenue for the federal government.

Everyone agrees that cell phone companies need spectrum and it is possible to free up some of it (potentially a lot of it) by consolidating broadcast television stations and eliminating some of them altogether. But should we be favoring cell phone companies at the expense of broadcast television or are their hidden, non-monetary costs involved in incentivizing the sale of spectrum?

Going Dutch: How Does The Spectrum Auction Work?

The spectrum auction is a very complicated process that has already been in the works for several years now and will continue to play out in various stages over the next several months. This video does a good job of explaining the basics of the process:

So step one is the “Dutch auction,” or reverse auction, between the various television broadcasters and the FCC. The FCC has offered to buy spectrum (the bidding started at the end of March) and broadcasters will then offer to sell if they are interested. The broadcasters are therefore the ones setting the initial price and bidding each other down until they reach a floor, then the FCC buys the spectrum. This part of the process is voluntary so broadcasters can choose not to participate if they wish to keep all or part of their allotted spectrum.

In the second step of the process, the FCC takes all of the spectrum that it purchased from the broadcasters and sells it to wireless service providers and cell phone companies. This step is a traditional or forward auction, so the wireless companies will be bidding against each other, driving up the price. Wireless companies desperately need the spectrum so the FCC anticipates recuperating the cost of running the auction and the cost of the third step in the process. If there is any extra, that money will go toward funding other government projects.

The third step of the process is, however, mandatory. Referred to as “repacking,” this involves the FCC taking the remaining spectrum and reassigning it to the broadcasters in order to consolidate them to a tighter range of frequencies. A broadcaster, large or small, will be unable to avoid this process and since the auction just started, we really have no idea how many of them will be affected. Essentially, the FCC will have carte blanche to consolidate broadcast channels to make the most efficient use of the remaining spectrum.

Possible Consequences

The video below does a good job addressing some of the collateral concerns around the FCC’s spectrum auction. One of the key implications of this spectrum auction is how its success or failure will determine how we try to allocate spectrum going forward.

The incentive auction is a creative–if very complicated–solution to the problem of spectrum shortage for cellphone companies. By facilitating this exchange the FCC is allowing us to watch Netflix on our iPhones and maybe even make a profit for the government while doing so. It certainly is an attractive option and is much better than the alternative of spectrum shortages that would have unpleasant effects. Not just for entertainment but, as more users adopt these devices, on businesses and commercial activity as well. A first world problem would actually become a very real problem with heavy usage on an already stressed system, particularly in cities and congested areas.

But there are some caveats to consider. The initial steps in the auction process are voluntary–broadcasters and wireless companies are both choosing to participate (or not) in the auctions. But the third step, the repacking process, will happen to broadcasters whether they like it or not. Even those who chose not to participate in the auction will be affected and may be forced to move their broadcasting to different channels.

Repacking

This video goes into detail about this repacking process.

Aside from the logistical concerns that this is going to create for the broadcasters, repacking could have a huge impact on many small local stations and even private citizens. For example, let’s say that you are a private citizen who would like to start his or her own television broadcast to promote your political or social views. Right now the spectrum may be available to you and you can do that on your own, or with a small group of like-minded citizens. Alternative media sources, ranging from the real and credible Democracy Now! to the fictional and surprisingly relevant PTV on “Family Guy,” use this method to enter the marketplace of ideas. This is also particularly important for citizens who may not have easy access to cable or the internet and rely on broadcast television for their news.

Repacking the broadcasters will likely result in smaller broadcasters being winnowed out. The costs of switching to another channel may be too high and even if there is a possibility of reimbursement, those hurdles may be too complicated for some broadcasters to navigate. Large broadcasters will be able to have teams working on their repacking transition and may also have additional access to the FCC to advocate to make the process go as smoothly as possible. Smaller broadcasters do not have those luxuries.

These changes may also push broadcasters who survive the repacking process to cut back on broadcasting in certain areas if the cost of building infrastructure there doesn’t make economic sense. For example, if a broadcaster is changed from channel 35 to channel 19 and it has to build new towers, it may choose to only do so in areas where it gets the most viewership. Large numbers of people could be left in the dark by that broadcaster and, if the situation is the same for multiple companies, they could be left out altogether. This will disproportionately impact rural Americans. It will also impact people without smartphones or broadband internet, which tend to be poor and elderly Americans, making it more difficult for them to access media, particularly news.

So what exactly are we incentivizing? If broadcast television is going extinct anyway, perhaps not much. The FCC may just be speeding up the natural process of eliminating broadcast television, starting with smaller stations that sell all of their spectrum or get driven out of the market by the high cost of transitioning. The number of broadcast viewers actually increased last year to 13.1 million, possibly because viewers wanted to get rid of their cable subscriptions or gain access to local television stations. However, that was a relatively small change in the context of the overall viewership numbers and the growth was nowhere near the explosion in smartphone growth. And if all communities gain access to the internet, broadcast television may no longer be necessary as online media takes its place.

If technology has evolved to the point where broadcast television is going to die out then it may not be such a bad thing for the federal government to make a profit while facilitating that process. It is the same sort of argument advanced by those who want to eliminate coal mining. Yes, a percentage of the population, one that is already at a disadvantage, will be harmed. But their industry is already dying and they are such a small percentage of the population that we are willing to let that harm happen in furtherance of faster progress. Buggy-whip salesmen were harmed by the invention of the car but we needed cars. In the end, their harm, however severe, may be a small price for society to pay.

Conclusion

The FCC Spectrum Auction is not an issue that is going to be resolved anytime soon. The original plans for it started in 2012 and changes to the system could take several years after the auction closes. It’s a complicated concept and like most plans it is unlikely to survive implementation unscathed. Yet even if it succeeds and yields a profit, it may ultimately fail by working too well–by opening up too much spectrum to cell phone carriers at the expense of smaller broadcasters and the populations that rely on them. While it’s hard to guess exactly what exactly the auction and subsequent repacking will mean for broadcast networks, the FCC’s plan marks a bold step that will shape future efforts to redistribute wireless spectrum.

Resources

Primary

FCC.gov: Wireless

FCC.gov: Incentive Auctions

Additional

TheVerge: How the FCC’s Massive Airwaves Auction Will Change America—and Your Phone Service

Chicago Tribune: Spectrum Auction Underway to Shift Airwaves from TV as Mobile Demand Soars

Recode: Making Sense of the Incredibly Confusing Spectrum Auction

Forbes: FCC’s Tangled Web

Fortune: Blackstone FCC Airwaves Auction

Fortune: FCC Incentive Auction

Wall Street Journal: FCC Releases List of Bidders For Wireless Airwaves Auction

TechTimes: FCC Auction Starts Strong, Reaches Spectrum Goal

Bloomberg: Wireless Fever Cools Before FCC Auction With No Dark Horse Seen 

Variety.com: TV Spectrum Auction FCC

IBTimes: Binge What? FCC Spectrum Auction

PBS: FCC Auction FAQs

Corporation For Public Broadcasting: Spectrum

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post FCC’s Spectrum Auction: What it is and Why it Matters appeared first on Law Street.

As of 2015, there were 2,800 drug courts in the United States and they were working with 120,000 defendants per year. The idea behind these courts is to use the criminal justice system to compel addicts to rehabilitate themselves. The ultimate goal is to reduce recidivism for drug use and the other crimes that often accompany drug addiction. In order to do this, drug courts use both a carrot and a stick approach with addicts. Courts promise to reduce or eliminate jail time in exchange for the successful completion of a drug treatment program–hopefully saving money for taxpayers along the way.

The first drug court program was started in 1989 and represented a very different approach to dealing with drug crimes. A traditional criminal justice approach is for the court to only analyze if the state has proved that the defendant committed the crime and then to sentence him or her. Drug courts are an attempt to cure the underlying cause of these crimes in the first place, based on a better understanding of the nature of addiction. Drugs were increasingly being viewed as a public health crisis and not an individual moral failing. Traditional criminal justice approaches can do nothing to combat that kind of problem and are not designed to take those factors into consideration.

Drug courts were therefore built on the idea that the court is part of a team–including law enforcement, prosecutors, social workers, and the defendant–that is engaged in helping the defendant to stop using drugs and not commit future crimes. The judge in a drug court also takes on an active role in the defendant’s treatment. This engagement by the court is actually a key factor in the lives of defendants where drug courts have proven successful. At the very least, drug courts represent a judicial system that is trying to adapt to our evolving knowledge about drug addiction and the best ways to combat it.

But drug courts may not be as enlightened a solution to the problem of drug addiction as they seem at first blush. There are serious concerns about the scope of drug courts in terms of who can participate, the role of judges, and the rights that defendants give up in order to be a part of this process. There are also questions about the efficacy of these programs and whether the same goals could be accomplished through different means.

How Do Drug Courts Work?

Drug courts actually come in two main varieties, which is a nuance that is sometimes lost in the debate–deferred prosecution, and post-adjudication. In the deferred prosecution model (sometimes referred to as a “diversion” model), defendants are sent to a rehabilitative program or are given a set of guidelines before they are prosecuted. If they successfully complete their program the charges are dropped. In contrast, the post-adjudication model requires that the defendants plead guilty to the charges they face and are then sent to a drug program. If they complete the program successfully the sentence will be waived and the record potentially expunged.

This may not seem like an important difference if, after a drug program is completed, the defendant avoids jail time in both cases. But it is a very important difference for defendants who don’t successfully complete their programs. This is because in a deferred prosecution model the defendant goes back to the beginning of the process and still retains their right to plea bargain or plead not guilty and receive a jury trial. For defendants with a weak case against them or sympathetic facts, that can be significant. The defendant in a post-adjudication model drug court goes right to the sentencing phase of their trial–because in order to participate in the program a defendant must first plead guilty.

In this short video, Mae Quinn, the co-director of the Civil Justice Clinic at Washington University in St. Louis, discusses drug courts and her experience working in one of the earliest ones in the 1990s.

Concerns about Drug Courts

Quinn’s video presents us with several concerns about drug courts that should be unpacked. The first concern is one that could be viewed as both a blessing and a curse. In drug courts, judicial involvement with the defendant is much more intimate than it is in a traditional court setting. Judges are less like the neutral arbitrators of a normal court proceeding. Instead, they are as Quinn suggests, part of a “team” of people–which includes the defendant–who are working on the defendant’s sobriety. This could be of enormous benefit to drug users. And, in fact, the research suggests that one of the main indicators of success for a defendant in a drug court program is the level of involvement that a judge has in the process.

One study found a startling difference between defendants who were required to attend biweekly hearings with the judge in their case and those who only attended hearings on an “as-needed” basis. In the former group, 80 percent of participants graduated (completed the program) and in the latter group, only 20 percent of participants did so. Both groups involved high-risk drug court participants, meaning participants who had previously failed treatment.

One of the criticisms of drug courts is that the people who need them the most often don’t have access to them. Federal grants to establish these courts, which are still managed on the state or local level, make excluding violent offenders a pre-requisite to taking grant money. These courts also tend to restrict access to drug court programs for addicts who have long criminal records or histories of failure. Placement in a treatment program can also be difficult to get, with long wait times before entering into a program. Since placement in a program within 30 days is one of the strongest predictors of a successful outcome, these wait times have a negative impact on the success of drug courts, especially for women who have to wait twice as long for an available spot in a treatment program.

As Professor Quinn discusses in the video, defendants sometimes receive a longer sentence than they otherwise would have if they participate in a drug court program and fail–sometimes two to five times the length of the prison term they would otherwise have received. Since “flash incarcerations,” or short prison stays, are also one of the sanctions available to judges they may also spend more time in jail even if they have the charges dropped after graduating from the program and therefore face no sentence for their initial crime. Drug courts may also encourage law enforcement officials to arrest more low-level drug offenders since they view drug courts as a better means of processing them, which puts additional stress on the system and exacerbates some of these concerns.

Yet there is evidence that for some individuals these programs can be very effective. Take a look at this Ted Talk by Judge David Ashworth, who is the presiding judge of the Lancaster County Drug Court.

Measuring Results

The courts that Judge Ashworth describes may be different from the “typical” drug court because they are controlled at the state and local level and can vary widely. For example, Judge Ashworth’s court specifically targets “high risk” drug users. Participation is also voluntary and is designed, by his own admission, for people who already want to get clean. It is, however, a post-adjudication style court, meaning that the defendant pleads guilty as the first step in their drug court process.

The statistics he cites suggest that the drug court of Lancaster County has been particularly successful for those who graduate, reducing recidivism rates to below those of the national average. But not all of the participants in drug courts end up graduating from the program. Most of the pro-drug court data out there is written in terms of how much recidivism is reduced among graduates, but may not include the number of initial participants who enter the program in the first place.

Critics claim that this can lead to an overly positive picture of the impact of drug courts, particularly in jurisdictions that cherry-pick data. Jurisdictions are forced to exclude many types of potential defendants, most notably anyone who has committed a violent crime, in order to receive federal funding. One study indicated that, because of the eligibility restrictions, only 7 percent of the 1.5 million arrested for drug offenses were eligible to participate. Only half of the initial participants in most drug court programs end up graduating. A study of New York’s drug courts by the Urban Institute and the Center for Court Innovation found that for those who participated in drug courts, 64 percent of the non-graduates were re-arrested within three years, versus 36 percent of the graduates. But of those who were arrested but did not participate in a drug court, only 44 percent were re-arrested in the same period. So defendants were actually more likely to be re-arrested if they went to drug court and failed to complete the program than if they had gone through the normal court process in the first place.

One of the most significant issues with drug courts that Judge Ashworth did not address is the issue of maintenance treatment. Maintenance treatment, which involves using drugs like methadone to treat opioid addiction, is by far the most effective means of treatment–reducing the risk of death by 66 to 75 percent. But a third of drug courts will not allow it.

Drug courts vary widely in different localities, just as their effectiveness varies widely based on the kinds of judges serving on them. That can be positive in that it allows jurisdictions to experiment with different methods of operation. However in jurisdictions where those experiments are unsuccessful, it can lead to tragic outcomes and the judges involved in drug courts may not be specially trained in the science behind addiction, particularly opioid addiction. The increased flexibility of judges to deal with drug addicts in a drug court setting is only a positive if these judges are both eager to help the addicts in their court and properly educated on how to do so.

Conclusion

As a society, we have acknowledged that drug addiction, and the crimes that accompany it, are somehow different than other crimes; that it is as much a public health crisis as it is an issue of safety. Conservatives and liberals are both willing to seek innovations in how we deal with these individuals. Drug courts actually end up appealing to both sides of the aisle for various reasons.

The truth about drug courts is more complicated than it appears. These programs are not “hug-a-thug” initiatives, as Judge Ashworth points out. And while they may save money, they only do so when they keep people from seeing jail time at all, not when they just delay incarceration until after participants fail the program. The best elements of drug courts–judicial flexibility and interdisciplinary teams working with defendants–should be encouraged. In fact, these characteristics could be beneficial in other parts of the justice system as well, even for violent offenses. But the negative aspects need to be addressed. Defendants should not be coerced into pleading guilty to participate in treatment. Access to rehabilitation should be opened up to more cases, not just the “easy” ones that make drug courts look better, access should be increased for female offenders, and maintenance treatment for opioid addiction needs to be addressed.

Resources

The Sentencing Project: Drug Courts: A Review of the Evidence

Pacific Standard: How America Overdosed On Drug Courts

SADO: Michigan State Appellate Defender Office

WhiteHouse.gov: Drug Courts Fact Sheet

TribLive: Westmoreland District Courts First in PA to Offer Drug Treatment in Lieu of Punishment

National Institute of Justice: Drug Courts

U.S. Department of Justice: Drug Courts

DrugWarFacts.org: Drug Courts

Atlanta Journal-Constitution: Pro & Con: Drug Courts An Effective Alternative For Offenders?

Open Society Foundation: Drug Courts Are Not The Answer

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Are Drug Courts the Answer For Addicts Who Commit Crimes? appeared first on Law Street.

If you are tempted to take out a payday loan you might want to take Sarah Silverman’s advice and try literally anything else. The trouble is, there are rarely other options and here in the United States there are 40 million Americans who are “unbanked,” without access to the formal financial system. Shockingly, these Americans spend the same amount just to use their own money as they do to purchasing food–10 percent of their income.

Payday loans may be an evil but unless and until they are replaced with a better alternative they continue to be a necessary one. Eliminating payday lenders would prevent borrowers from taking on that particular pernicious type of debt but does not solve the underlying concern that many unbanked Americans do not have access to credit.

One of the proposed solutions to provide access to banking services for the unbanked is to use the United States Postal Service. Progressive politicians are advocating this method as an efficient way to reach low-income citizens in their neighborhoods. But some are uncomfortable with a government agency, one which is facing some financial difficulties of its own, taking on a problem that should be dealt with by market forces.

So is the existence of the “unbanked” really a problem? If so should we be using the post office to combat it?

A Solution for the Unbanked?

For a primer on the issue of how many Americans are currently unbanked and would benefit from an alternative to payday loans, check out this TedTalk by Mehrsa Baradaran.

As Baradaran explains, postal banks are actually something we already had and used to great success. From 1910 to 1966, the U.S. Postal Savings system provided a place for Americans to deposit funds in order to save money and have a way of paying their bills other than with cash. That is one of the chief problems facing the unbanked–the inability to have easy access to their own money and the high percentage of their money spent on just using their own funds. Paying a fee to access your own money or even just check your account balance is a significant financial burden and a service that the banked get access to for free.

With the advent of community banks, which offered a more attractive interest rate to depositors, the postal banking system seemed unnecessary and was eventually abolished in 1966. But the community banks–which were also proposed as a solution to the problem of the unbanked–removed themselves from low-income neighborhoods and contracted the number of people they provided services for. Nature abhors a vacuum and payday lenders went into that space, which is why people in low-income neighborhoods are often forced to rely on these types of lenders as substitutions for the banking services that the banked take for granted.

For the unbanked, there is simply not a banking location that they can go to. And one of the beauties of using the postal system for banking is that convenient locations already exist. Fifty-nine percent of post offices are in zip codes where there is either zero or only one bank. Other industrialized nations already have postal banking. In the U.K., the postal service does not actually provide financial services but allows third-party providers (like the Bank of Ireland) to conduct business there. France has actually converted its postal service into a financial institution.

The postal banking systems have been imperfect. In Japan, the postal banking system drew heavy criticism for its inefficiency. Yet 80 percent of Japanese citizens over the age of 15 had a postal bank account. China and India are also seeking ways to increase micro-lending and financial services to their nations’ poor through the use of postal banking services.

Potential Concerns

The concerns regarding postal banking fall into two main camps. First, there is the question of whether a postal banking system would help and whether the U.S. Postal Service could operate it efficiently and fairly. The second concern is less a practical question of ability and more an assessment of whether we want to use the postal service to promote a specific financial ideology.

The U.S. Postal Service seems to think it would be able to provide this service. The American Postal Workers’ Union makes the argument that postal workers are already in the very places that community banks have abandoned and they currently provide some financial services, like money orders. They would be able to provide small loans as well–like a payday lender but without extremely high interest rates.

The video below outlines the case made by the American Postal Workers’ Union for postal banks.

But the argument goes beyond the mere logistics of whether post offices can provide these services. The core concern is whether they should. Whether we want a government institution to be providing a service that is traditionally left to the private sector. After all, should the government really be involved in trying to undercut the payday lending industry based on a largely moral argument about “fairness”?

True Competition 

The private sector might argue that payday lending is actually fair. It provides a needed service–credit–at a rate that people are willing to pay. With so many of these financial institutions out there it is hard to argue that the industry is not competitive and given that these rates are still being accepted by many borrowers that must be what the credit is worth.

But that argument may misconstrue what true competition, one that will actually produce a fair price for something in a healthy market, consists of. Critics of payday lending would argue that true competition involves choices between meaningfully different options, not the illusion of choice between virtually identical competitors. A person living in an area where there are 10 payday lenders and no banks is not truly living in a competitive market. The individual lenders may vary their terms slightly but from the perspective of the borrower, they are still going to have to choose a payday lender. QuickCash versus KwikKash does not, at the end of the day, matter very much to the borrower or to the pernicious effects of the system.

The implementation of postal banking would provide meaningful choices to borrowers and create a true alternative to the payday lending industry. Then, when faced with that actual competition, they will be forced to either adapt or die. If a 400 percent interest rate really is a reasonable price to pay for the service they are offering then payday lending will survive the introduction of postal banking.

When you discuss postal banking there are two main ways that it can be structured–a postal bank that provides access to credit and one that does not. In the past, postal banks did not provide the type of micro-loans that would compete with payday loans. While a modern version of the postal bank could include small loans it doesn’t necessarily need to. Postal banks can provide other valuable services; most importantly post offices can serve as a place to save and access your money. If postal banking was re-instituted without lending, it would likely go a long way in solving the problem of access for the unbanked and underbanked.

Currently, people who live in a community where there is no bank have three main options to cash their paycheck. Payday loan providers that usually charge a 10 percent fee, check cashing services (some are part of larger retailers like Walmart) that typically charge a lower flat fee, and prepaid card accounts that allow you to deposit your money into the account but then charge a monthly fee for you to use the card. Those of us with bank accounts can get all of these services for free.

The Government’s Role

Postal banking would, of course, involve the government taking on a role that is now filled by the private sector. One fear is that this will stop the development of private sector alternatives to payday lending and stifle innovation in the provision of financial services. We may hate payday lending, but many feel that if it is going to be replaced that should be done by the private sector–through innovation in technology or some other form of financial institution. The government’s role should be contained to regulating industries, not replacing them.

But the postal bank did not, when it existed, kill other banks. In fact, the opposite happened. The rate of interest for the postal banks was capped at 2.5 percent to weaken their ability to compete with other banks. When community banks offered better rates, not surprisingly, depositors moved there–choosing a private sector institution that they felt better suited their needs. Postal banking also would not eliminate advances in technology and electronic banking. Those advances are driven by thinking of better ways to provide services to already banked people.  Applications that transfer money instantly between bank accounts for a minimal fee on your smartphone only benefit people who have smartphones and bank accounts. To the unbanked, these advances are meaningless–21st-century innovations in banking don’t assist people who are still stuck in the 20th. Creating a postal banking system would help the millions of unbanked Americans enter into the formal financial system, but it may not have much effect on companies seeking to further cater to those who are already included.

Conclusion

Postal banking may seem to some like a governmental overreach into an arena where the forces of the market should be in charge. Undercutting a private sector industry in favor of a government run charity-bank makes some people uncomfortable. Some may ask where we should draw the line between public good and social engineering. But postal banking already worked once in our nation’s history. And while it is not a complete solution to the problem of the unbanked and underbanked it could be used as part of that solution.

Resources

NerdWallet: Where To Cash A Check Without Paying Fees

Huffington Post, Postal Banking : An Idea Whose Time Has Come Again

The Washington Post, Should The Post Office Be A Bank?

Bloomberg QuickTake, Postal Banking

Slate.com, A Short History of Postal Banking

Goodreads, How The Other Half Banks

The Ultimate History Project, Postal Savings Banks

The Atlantic.com, Bernie Sanders’ Highly Sensible Plan To Turn Post Offices Into Banks

The American Interest, The Return of Postal Banking

Salon.com, Two Words For Hillary…Postal Banking

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Should We Bring Back The Postal Banking System? appeared first on Law Street.

Access to credit is a necessity for individuals who are faced with a sudden financial emergency. But for the “unbanked” and “underbanked,” there are very few options to get that access. To cover an unexpected expense, even a relatively modest one, that they can’t pay for with their savings or by selling something, these individuals often turn to payday loan providers. It’s an industry that generates billions of dollars a year and is characterized by many as being unconscionable. The interest rates on the loans are often as high as 400 percent per year (though the loans typically last two weeks) and users of payday loans are often trapped in a cycle of loan renewals that result in paying thousands of dollars to borrow hundreds.

High Interest Rates

The terms of payday loans are terms that most of us would never consider signing on for. An interest rate of 400 percent is by any definition, usury. But for the unbanked and the underbanked who desperately need that credit to get them through whatever emergency they are facing, those terms are agreed to. Contracts like this are sometimes referred to as “contracts of adhesion.” A contract of adhesion is one that involves a stark difference in the power of the two parties–where the stronger party is the drafter and the weaker party is unable to modify or negotiate the contract. Usually, these contracts are found in large transactions, like purchasing a house or a car. Courts are willing to take a closer look at these contracts because of the differences in bargaining power and if they find the contract, or a provision of it, to be “unconscionable” they will invalidate it.

The court’s ability to invalidate these contracts is meant to protect the weaker parties with little bargaining power. Just as stricter regulations on payday loan providers would be an attempt to protect the unbanked and underbanked from “predatory” lending practices. But calls for regulation do not address the underlying concern that if the payday loan industry were eliminated and nothing replaced it the unbanked and underbanked might actually be worse off than they were before. They would have no access to emergency credit. And while the majority of people who use payday loans get caught in a trap of debt some people are able to use these loans and benefit from them. If payday loans are going to be regulated to extinction or outright eliminated there needs to be some instrument for emergency credit to replace them.

By The Numbers: How Do PayDay Loans Work?

So what exactly are the terms of a payday loan? How bad are they really? Pretty bad, as it turns out. They are designed to not be paid back, which is why some states have banned them altogether. But that is, from the lenders’ point of view, the beauty of the system. Here is how it works. The borrower takes out a loan to pay off a debt. Often that debt is fairly small–the typical payday loan is for a few hundred dollars–and the term of the loan is usually two weeks. Borrowers often can’t pay back their loan within that two week period, which is not surprising given that they had no savings to fall back on, causing them to take out the loan in the first place. Borrowers then often end up “renewing” the loan. This is where loan providers make much of their money, from the frequent renewals. More than 80 percent of payday loans are renewed at least once and 22 percent are renewed six times or more, ultimately costing borrowers more in fees than the amount they borrowed in the first place.

Let’s use some of the numbers from Mehrsa Baradaran’s book “How The Other Half Banks” as an example. If someone takes out a loan of $325, a typical amount, and renewed it eight times (or took four months to pay it off) would cost the borrower $793. That number reflects a principal of $325 combined with additional interest of $468. In a very short time, the interest added up to almost 1.5 times the initial loan.

It actually gets worse. When the borrowers take out payday loans they sign over their paychecks or give a lender permission to withdraw money directly from their account. So when they get their paychecks the money they owe is taken directly from them, taking, according to a report from Pew Charitable Trusts, 36 percent of the borrower’s paycheck before they even get their hands on it to pay for other expenses–automatically.

Take a listen to this for an audio recap of how some of these numbers work out.

Given how high these interest rates are, what kind of borrowers would agree to them? It may not be the individuals you think. It isn’t the completely destitute who take out payday loans because they can’t offer their future paychecks to pay the loans back. According to a survey conducted by the Pew Charitable Trusts, “there are five groups that have higher odds of having used a payday loan: home renters, those earning below $40,000 annually, those without a four-year college degree, those who are separated or divorced, and African Americans.”

This PBS segment on the issue does an excellent job of showing the kinds of individuals who might take out a payday loan and some of the effects that it has on them and on society as a whole.

Unconscionability And Solutions

The numbers for the unconscionability argument against payday loans certainly seem damning at first glance. But just because the fees are high does not mean that they are unfair from an economic perspective. According to the economists at Liberty Street Economics, the unfairness argument shouldn’t necessarily depend on what the fees are but rather on whether those fees are being determined by a competitive market. A competitive market will produce a fee that is “fair,” but will still allow companies to cover the costs of doing business. One could make the argument that the costs of running this business are so high because these debtors are bad credit risks (likely to default) so higher fees are justified to cover the costs of those defaults. Providing credit isn’t a charity and we shouldn’t be writing policy as though it were.

Payday lenders will point to the high default rate on payday loans, and therefore the increased risk to the lender, as an explanation for high interest rates. If you look at the default rate for payday loans they are pretty high–studies in different states have found default rates of between 44 and 56 percent. This is not surprising when you are lending to a segment of the population that has no savings and limited access to banking options.

But the rate of default is more complicated for payday lenders. Payday lenders have the unusual and critical advantage of being able to draw funds directly from the borrower’s account.  This means that while the borrower may “default” because they don’t have enough money to pay back their debt in their account the lender can take the money anyway and subject the borrower to an overdraft penalty on their account. So the lender is still getting repaid even though they are categorizing it as a default. The Center for Responsible Lending calls this “Invisible Default.” In fact most borrowers (66 percent) who “default” actually do end up paying their debt back. The default rates on payday loans is often used to explain why lenders charge such high interest rates, but if lenders are still able to recover most or all of the money, these invisible defaults may not be as financial damaging as it may seem.

Potential Alternatives

There are several potential ways to reform payday loans but the two main ways, other than eliminating them altogether, are capping the amount of interest that can be charged and putting a cap on the number of times the loan can be renewed. A 36 percent cap is what is often proposed, but that is effectively viewed as a ban on payday lending, as lenders claim that they would not be able to cover costs. Even though 36 percent is much higher than the average credit card interest rate, the loan amounts are so small and the risk of default is so high that it probably would kill off payday lending, at least as it currently operates. A cap on renewals would also be costly for them but perhaps not to the same extent, depending on how many renewals were allowed per loan. If the number was very high it might not present much of a deterrent to either lenders or borrowers.

It is possible for a borrower to use a payday loan and not become ensnared in debt, as long as that borrower is able to avoid renewing that debt repeatedly. For those borrowers who need that credit and who believe they will be able to pay it back in two weeks, it seems unfair to eliminate their ability to borrow money at all. The inability of other people to borrow responsibly shouldn’t hinder their ability to enter into contracts that they think will benefit them, even if they end up being wrong.

The main premise for nullifying a contract of adhesion is that the parties weren’t on equal terms, and often, it is based on the notion that if the weaker party really knew what they were signing up for they wouldn’t have done so.  But in the case of payday loans, the borrowers do understand that they are signing a contract that is skewed entirely in the lender’s favor–the evidence suggests that they know what they getting into and are choosing to sign up for it anyway. Eliminating payday lenders without presenting another option is taking away their ability to make financial choices and preventing them from accessing credit.

The answer to an individual contract of adhesion may be to nullify the contract if there really is evidence of foul play and manipulation. But the answer to millions of those contracts isn’t to assume that each one was made by predators and prey. It’s to come up with a better kind of contract; one in which the terms are not seen as unconscionable by outside parties.

Borrowers are always going to need access to credit. Payday loans, as awful as they are, exist because that need is not being met by any other lender. But it could be–there are several different solutions to the problem of credit for the unbanked and the underbanked that we could implement here in order to eliminate the majority of the demand for payday loans. One such solution is one advocated in the book “How The Other Half Banks,” which is the institution (or actually re-institution) of the U.S. Post Office as a banking service. If you would rather listen to a discussion of the idea, you can listen to Mehrsa Baradaran, the book’s author, talk about it here. As discussed in both the podcast and the book, post offices reach even very remote communities and could be used as a place to deposit funds and could even be used to provide emergency credit.

Another solution Barandaran discusses is a British style overdraft where you are allowed to have a negative balance on your checking account (for an interest fee) without paying the high overdraft fees that many banks currently charge. If there were other options for borrowers who utilize payday loans to access the credit they need, such loans may not be necessary.

Conclusion 

Payday loans can be a spectacularly bad idea for borrowers, especially if they are not able to pay off their balance after the loan’s two-week period. The problem is that for the people who need them, a spectacularly bad idea may still be better than the alternative. The solution to the problem is not to eliminate a service, that despite its flaws may still be necessary, without replacing it. Rather a better solution for borrowers is to create an option, or a combination of several options, that gives them access to credit.

Resources

Goodreads: How The Other Half Banks

Pew Charitable Trusts: Payday Loan Facts and the CFPB’s Inpact

Liberty Street Economics: Reframing The Debate About PayDay Lending 

International Business Times: Payday Loans: Study Highlights Default Rates, Overdrafts As Groups Debate CFPB Regulations

Cornell Law School: Contract of Adhesion

Freakonomics: PayDay Loans 

SlateMoney: PayDay Loans, Postal Banking and Pre-paid Credit Cards

Huffington Post: PayDay Loans: The Worst Abuse is not Regulated

The Center for Responsible Lending: Payday Mayday: Visible and Invisible Payday Lending Defaults

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Payday Loans: Predatory or Necessary? appeared first on Law Street.

Tipping is a cultural practice that is deeply ingrained in the American service industry, particularly food service, that most of us have not stopped to consider. If we eat at a restaurant, we leave a tip for the person waiting on us. There are dozens of social rules about how and when to tip and being a “good tipper” is considered a positive social trait.

Tipping also allows restaurant owners to defray some of their labor costs onto the customers who use their services. The rules in each state are different but organizations like the National Restaurant Association lobby for a lower minimum wage for wait staff, which is then supplemented by tip income. Their rationale is that lowering the costs for employers allows them to hire more wait staff and increase their profitability, which in turn puts their workers in a better position.

So what are we actually doing when we leave a tip for a waiter at a restaurant? Are we encouraging efficient service or subsidizing the profits of restaurant owners?

Topping Off

The most common tipping scenario we come across is tipping wait staff at a restaurant, so let’s use that as an example for how tipping actually works in practice. In many states, wait staff employees are exempt from being paid the usual minimum wage. Instead, they are paid a much lower wage by their employer, the restaurant, and make the rest of their money in tips. In theory, the restaurant is supposed to pay the waiter more if their tips plus their base wage do not equal the minimum wage. For example, if the minimum wage is $7 an hour and the restaurant pays $2 as the base wage, if the employee isn’t getting $5 an hour in tips the employer is supposed to “top off” and pay them extra. For a breakdown of which states require employers to “top off” and how much take a look at the Department of Labor chart here.

There are basically three kinds of states: full credit, partial credit, and no credit. These terms indicate whether employers are able to get a tax credit for topping off their employees’ wages to meet the minimum requirements. Full credit states follow the federal minimum wage for tipped employees, which is $2.13 an hour and then rely on customer tips to raise the wage of those employees to the state minimum wage. Workers in partial credit states earn somewhere above the federal $2.13 minimum but below whatever that state’s minimum wage is. So the cost of labor is still being subsidized but not quite as much. In no credit states (there are seven including D.C.) tipped workers and non-tipped workers are paid the full minimum wage, meaning that employers cannot take a credit for topping off their employees’ wages because their base wages already meet the state requirement.

Poverty Among Tipped Workers

How do these policies affect the actual workers involved? Nationally, the poverty rate for all workers, in general, is 6.5 percent but for tipped workers the poverty rate is 12.8 percent. The subcategory of tipped workers who are waiters and bartenders experience a poverty rate of 14.9 percent.

But when you break this down for the three different kinds of states (full, partial, and no credit) there is a difference in poverty rates. According to the Economic Policy Institute, tipped workers, waiters, and bartenders fare much better in the no credit states–where base wages for all employees must meet the state minimum. For example, in no credit states the poverty rate for waiters and bartenders is 10.2 percent and in full credit states, the poverty rate for these workers is 18 percent. The poverty rate among waiters and bartenders in partial credit states falls in between at 14.4 percent. The evidence suggests that tipped workers, which includes waiters and bartenders, experience less poverty when employers pay a higher percentage of their wage and experience the least poverty when employers are responsible for the full amount.

The chart below from the Economic Policy Institute shows how poverty rates correlate to state requirements for tipped workers.

So while raising the minimum wage may be a worthy goal to help non-tipped workers, doing so will not actually affect tipped workers in most states. Even though these workers may be the people who need an increase the most, given that they experience higher rates of poverty and receive higher rates of government assistance than non-tipped workers.

An added problem with the “topping off” policy is that it doesn’t always happen. A compliance sweep of 9,000 restaurants by the U.S. Department of Labor’s Wage and Hour Division found that 83.8 percent of these restaurants were in violation. This resulted in $56.8 million dollars being collected in back wages for the employees at these businesses. Because employees have to insist upon it and the actual calculations are complicated, businesses may not consistently pay these employees what they are supposed to and these employees end up earning less than the minimum wage.

For a more thorough explanation of the concept and how it can affect wait staff, take a look at this segment from PBS:

Is Tipping Fair?

For a waiter in a state that allows this practice there are a lot of potential problems. Tipping is often based not on the quality of service but on race and perceptions of attractiveness. This can lead to employees who are working the front of the house on the same shift–covering the same amount of tables with the same level of efficiency–making vastly different wages because one is white and one is black. There is also a $4 per hour wage gap between white workers and workers of color in the restaurant industry due to the positions workers of color can get–they may work as bussers versus servers, for example.

The restaurant industry has, by far, the highest rate of sexual harassment in the workplace. For women, the rate of sexual harassment in restaurants is five times the rate of sexual harassment in other industries. This can lead to servers being subjected to unwanted sexual advances that they feel obligated to put up with because they’re working for tips. This motivation is also present in states that pay the same minimum wage for all types of employees but is particularly strong when the tips are necessary to even earn the minimum wage.

Most restaurants do not split the tips that are received between “front of house” (the wait staff) and the “back of house” (the kitchen staff). So the people who prepare the food are not rewarded at all in the tip. They aren’t given a higher base salary to compensate for this either. In fact, there is a gross disparity in pay between workers in the front and back of the house, even though working in the kitchen requires training and is arguably just as difficult as working in the front of the house.

This is even stranger when you consider that the tip for the wait staff is calculated as part of the cost of the meal, which typically depends on the quality of the ingredients and the cooking. But the staff responsible for that increase in quality doesn’t get rewarded. If a restaurant runs a special on a particular dish, reducing its price and therefore the tip, it does not make the waiter’s job any easier yet they are paid less. Tipping and the wage disparity that it creates can lead to a shortage of labor in the back of house and resentment between the staffs.

Why Do We Still Tip?

If tipping is so unfair to the wait staff and to the back of the house why are we doing it? Basically, tipping is a subsidy for the restaurant business. It allows restaurants to offer their potential wait staff less money than they otherwise would have to in order to attract workers. Restaurants are also able to pay their employees below the minimum wage because they are supposed to earn the difference in tips. And if tipped employees still make below the minimum wage, restaurants can get a tax credit for paying the difference.

Requiring that restaurants pay their workers a higher base wage rather than relying on tips to make up the difference would, according to advocates of the current structure, cause restaurants to close, cut staff, or increase prices–all of which have economic consequences. The restaurant industry supports many Americans and their families. If they are forced to pay the full minimum wage they would need to cut labor costs by firing workers or raise their prices to make up the difference. Raised prices would ultimately reduce their profits because a reduction in demand and that would be catastrophic to the families that rely on these restaurants.

However, the restaurant industry is also not supporting many American families. When workers aren’t taking home a reasonable living wage they end up relying on government services to meet their needs or foregoing those necessities. This effectively creates a second subsidy by the public for the restaurant industry, allowing them to pay their workers less than they need and then having taxpayers pick up the rest of the cost.

Conclusion

Tipping industries effectively split the responsibilities of the employer between business owners and their customers. It creates a divided loyalty from the staff to please their bosses and their customers, which sometimes leads to conflict and sometimes to abuse and discrimination. Tipping artificially lowers the cost of operating the business so that employers will be able to make a profit in a competitive industry, rather than letting capitalism take its course and eliminate an industry that may not otherwise survive.

That may not be a bad thing. Or at least not entirely a bad thing. An effort to eliminate tipping to help the workers in the restaurant industry, and correct the unfairness that tipping creates, might help them right out of their jobs. And deciding that you no longer wish to tip at restaurants will only get you some dirty looks. Even if tipping is unfair and a system of a higher base wage would be preferable for workers, it would only be preferable for employees who work for businesses that can afford to pay their employees more. Others could potentially lose their jobs because of an increase in labor costs.

Resources

Economic Policy Institute : Twenty-Three Years and Still Waiting For Change – Why It’s Time To Give Tipped Workers The Regular Minimum Wage 

Department of Labor: Minimum Wages for Tipped Employees

The Washington Post: I Dare You To Read This And Still Feel Good About Tipping

Freakonomics Podcast: The No-Tipping Point

Slate: What Happens When You Abolish Tipping

Economic Policy Institute: Twenty-Three Years and Still Waiting for Change

Department of Labor: Tipped Employees Fact Sheet

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post The Trouble With Tipping appeared first on Law Street.

A well-known cliché when talking about gun control in the United States is the saying, “guns don’t kill people, people kill people.” It would be more accurate to say that guns don’t commit murder since a gun can accidentally kill you. But for a murder to have been committed there needs to be some level of intent on the part of a human being. Depending on the degree and the state, those levels of intent are different, but when we think of a killing as a murder we typically think of something that the person did “on purpose.” Back in the day criminal law referred to this mindset as “malice aforethought,” a phrase still sometimes used when discussing murder. It isn’t very illuminating since “aforethought” can mean in the blink of an eye and you don’t really need “malice,” or motive, to be found guilty of murder. But it does show that in criminal law, usually what we are looking to determine is whether that individual meant to kill someone.

Tort law is different. Most tort law is all about negligence. Were you acting as a reasonable person would act in that situation? If not, we may feel the need to punish you. This mythical reasonable person is the standard for how we should behave in society and people who are injured by someone not acting up to that standard should be compensated. The word “reasonable” appears so many times in a torts casebook that a law school drinking game involving it would be “outrageous.” That is also what you need to prove for some intentional torts–any conduct that would cause a reasonable person to shout “Outrageous!”

Tort law is all about economics. We do so much commerce and interact so often with each other that people are bound to get hurt. We use products every day that are dangerous, in some cases extremely dangerous, without thinking much about it.

Take ovens, for example. The convenience of using them far outweighs the potentially catastrophic costs if yours happens to explode. Modern ovens are pretty safe, I’m guessing. I didn’t research how often they explode so as not to freak myself out. But even if they were not, we have decided as a society to have them anyway and if a few of us lose our eyebrows it is just the cost of doing business. Rather than have everyone give up ovens, we have come up with a system where the injured party can be compensated by the person who made the oven. If they deviated below the standard of care that a reasonable person, in this case, a reasonable oven maker perhaps, would give to its construction.

Are guns any different? The issue of manufacturer liability for the makers of guns has become a hot topic in the presidential primary, particularly on the Democratic side. The argument centers around a 2005 law, the Protection of Lawful Commerce in Arms Act (PLCAA), and whether it should protect companies that manufacture guns from civil liability for injuries or deaths caused by the guns they make. Not if the gun explodes because it was improperly made, but if someone purchases it and then shoots a victim. Given the extent of gun violence, should we have a different standard for a product that is designed to kill?

Are Guns Special?

Before we delve right in, take a look at this clip from one of the Democratic debates where Hillary Clinton and Bernie Sanders tackle the issue of gun manufacturer liability. It provides a good overview of some of the main points and emotional influences on the debate.

When Can You Sue?

The great myth surrounding this question is that somehow the gun manufacturing industry has somehow finagled a way to be completely immune from all liability for any defect in their products. That isn’t the case. If you’re out hunting and you fire your weapon and the bullet flies out of the wrong end of the gun and kills you, your estate will be able to sue the manufacturer of that weapon under a few different theories. Either because that gun (the individual gun involved or all the ones like it) was improperly made, or it was made according to a faulty design. Either way, if you really were using the gun as a reasonable person would you’d likely have a winning case. Even a jury that didn’t know a whole heck of a lot about guns would probably think you were right to assume the bullet would shoot away from you when you pointed it at your target.

What the PLCAA essentially does is it declares that we are not going to allow courts to hear a lawsuit from a victim or a victim’s family against a gun manufacturer when a third party used that gun in a criminal act. If this law did not exist, these cases could be brought to trial but that doesn’t necessarily mean the gun manufacturers would or could be held liable for what happened. It would just mean that instead of having a blanket rule about this kind of case, we are going to force judges to dismiss the same thing over and over. PLCAA is really just a law saying “don’t even bother” to people seeking to bring this type of suit.

It gets into the weeds a bit when you start looking at sellers of guns who may target individuals who aren’t legally allowed to buy a gun, or who sell to a “strawman,” or a buyer who buys in bulk just to sell to others in order to avoid a background check. But are those sales where the seller, and or, gun manufacturer themselves doing something illegal or helping others to subvert the law? That’s a very different scenario from a legally purchased product, which meets safety standards for that industry, then being used to commit a crime.

You can once again see Senator Sanders trying to make that distinction here. It’s also one of the few times you’ll hear someone bragging about getting a “D-.”

Standards for Guns

The statutory shield for gun manufacturers that the PLCAA puts in place does not necessarily grant greater immunity to gun manufacturers relative to the immunity that other industries enjoy.

It is just one that we have put in place for a product that, by its very design, is meant to injure and kill. Other products that can injure and kill are not regulated to the same extent but they do not enjoy this statutory immunity. Not because they have a powerful lobby but because there aren’t enough cases to warrant passing a law that tells people to not waste court time bringing a suit that is likely to be dismissed.

Take knives as an example. I have a set of knives; I bought them on Craigslist. Not from a manufacturer but from someone who had some knives to sell. There was no regulation telling her she should assess my mental state and Henkel (the original manufacturer) had absolutely no idea that I was buying knives they made. They’re well-balanced and sharp. Equally adept at slicing chicken or people (I presume). If I used those knives to cut up my mother into tiny pieces instead of a chicken (just an example!) my father would be laughed out of court if he sued Henkel. Why? Because they had nothing to do with it. Their knife did the job it was intended to do and with remarkable German efficiency sliced what I wanted to slice. We don’t bother to have a law that says you can’t sue the manufacturer of a knife for this because so few people try doing it. That isn’t the case with guns.

The argument could be made that knives have a dual functionality, a legitimate one to make food, and an illegitimate one to commit harm. Guns only have one purpose, which is to cause injury, and on that basis, the regulation should be different. Manufacturers are on notice that their product is likely to be used to commit a crime and they have decided to make them anyway. Therefore, it is justifiable to hold them partially responsible when someone commits a crime with their gun. That argument may not hold water. In fact, it may lean even more heavily toward not holding manufacturers liable because the one thing that makes a properly functioning gun part of a crime is the person using it. Their behavior is the difference between a tool that stops your home from being burglarized or a tool that kills innocent children. It has nothing to do with the product. You could make the same argument about a sex toy used in a rape or sexual assault. What makes it part of a crime is the intent of the criminal actor, not the company that made it.

That isn’t to say that a manufacturer should never be held liable for a product that isn’t defective but is improperly sold or marketed. Using sex toys again as an example, if the manufacturer advertised the product as ideal for raping someone or targeted their advertising to a sex offenders registry, they could potentially be held liable civilly for their actions, maybe even criminally. But as with gun manufacturer liability, they would be being held liable on the theory that they did something illegal or helped others to do so. Not for anything to do with the functionality of their product.

We don’t currently have a separate rule for guns. What we have done is codified the idea that criminals are the ones responsible for the crimes that are committed with guns specifically. The way we have already acknowledged in our legal structure that criminals are responsible for the crimes that they commit with any product.

Conclusion

Guns are the weapon of choice for criminals for several reasons, one of which is that they are relatively easy to get–just check online. And while a criminal armed with a semi-automatic or an automatic weapon is more dangerous to more people than one armed with a knife, the mass shootings still make up a relatively small percentage of crimes. A gun policy based on that fails to deal with the many types of crime where other weapons, such as a knife, would be as effective.

If you think back to the Democratic debate in the first clip you’ll notice Secretary Clinton make the argument that increased liability is an attempt to deal with the epidemic of gun violence. There is a very real problem in the United States with people who get access to guns, sometimes through illegal means and sometimes through perfectly legal channels, who go on to commit violence. Perhaps the situation has changed since 2005 when the PCLAA was enacted and we need to reassess the balance that was struck with allowing these kinds of lawsuits to go forward. The law puts a standard in place for the manufacturer to have “knowingly” sold a weapon to someone who fails to pass a background check, but shields them in cases where they didn’t “know.”

There are more options than having the manufacturer need to actually know they are selling it to someone who failed the background check and a blanket liability whenever someone commits a crime. The mens rea (guilty mind) for murder comes in a variety of flavors, from intent to depraved indifference. Even extreme negligence can get you jail time in some cases. If we wanted to increase the number of people who could potentially sue a gun manufacturer but still keep it somewhat limited we currently have the legal tools to do so.

The question is–should we do so? Does the nature of a gun as a weapon, and the modern day weapon of choice for criminals, make it somehow unique among the various dangerous products we use? We know that we have a problem with gun violence and increased liability for gun manufacturers would probably put a lot of them out of business–depending on how easy you made it for them to be sued and the kind of judgments that were awarded. It might decrease the amount of guns available, which might reduce gun violence.

Or do we have standards for liability for guns the way we do for other products that could be used as weapons, holding them responsible if their product is defective or their sale is criminal but not holding them responsible for criminal acts from third parties. That would mean we treat guns like any other product that we sell instead of a special category of goods that need different rules.

Resources

New York Times: Congress Passes New Legal Shield For Gun Industry

PolitiFact: Clinton: Gun Industry is ‘Wholly Protected’ From All Lawsuits

NPR: Are Gun-Makers ‘Totally Free’ Of Liability For Their Behavior

Cornell University Law Schoo: PCLAA

New York Times: Justices Reject Suit Faulting a Vaccine

CNN: Why Sandy Hook Parents are Suing a Gunmaker

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Should Gun Manufacturers Be Held Accountable By Victims of Gun Violence? appeared first on Law Street.

An estimated 15.7 million adults in the United States experienced at least one major depressive episode in 2014. Rates of depression have been on the rise in the United States for some time, causing some researchers to refer to it as an “epidemic.” The cause for this increase is unknown but some speculate that depression may be another “disease of modernity,” like obesity.

As with obesity, depression and the related condition of loneliness, are often linked to lifestyle. Modern life can isolate us from other human beings, causing loneliness and contributing to depression. Loneliness is more than just a negative feeling. It can have very real effects on a person’s health. Medical conditions like heart disease, cancer, and Alzheimer’s disease are all made worse by loneliness. Even our immune systems are weakened when we are lonely.

Depression is also more than just a negative feeling. Everyone has, at some point, felt depressed. Many people experience what is commonly referred to as “situational depression,” which does not rise to the level of a mood disorder. The death of a loved one or a job loss can trigger an episode of depression. This is the type of depression most of us are familiar with and while therapy helps situational depression, drugs are typically not part of the treatment. However, for people suffering from depression that rises to the level of a depressive disorder, a kind of “chemical depression” where the person’s brain chemistry is misaligned in some way, drugs can be an important part of treatment.

Modern psychiatry has made amazing developments in the treatment of mental illness with drug therapy. Just a short time ago, a patient whose depression was resistant to treatment through therapy and medication had the option to try electroconvulsive therapy or ECT. (Some patients were forcibly electroshocked without their consent, which is a whole other ball of wax). ECT is incredibly controversial and not for the faint of heart. Today there may be a new solution for patients who find that their depression does not respond to therapy or FDA-approved drug treatments.

This new solution is not quite as controversial as ECT but there are concerns about the use of this drug to treat depression. How worried should we be about introducing ketamine as a treatment for depression?

Off-Label

Ketamine is commonly used in veterinary medicine to tranquilize or euthanize animals and it is even used to tranquilize humans as well, typically for surgical procedures. It is also sometimes used as a date-rape drug and is probably best known by its nickname: “Special K.” Ketamine a psychedelic drug like LSD or mushrooms, which can cause hallucinations in addition to general euphoria. It’s typically found at raves and parties, but it does have several medical applications. While its medical use comes with few side effects, ketamine abuse can lead to amnesia, incontinence, and death. Unsurprisingly, it is also highly addictive.

Even so, medical professionals are impressed with ketamine and its potential to be a nearly miraculous treatment for depression. In the video below, Dr. Sanjay Matthew, an expert on depression and professor at the Baylor College of Medicine, explains the emerging research on ketamine as a treatment. What makes ketamine such an exciting new option is the speed with which it delivers results. Most depression drugs take weeks or months to start working for patients. The wait time to see if the medication will even be effective is not just an inconvenience, as many people who need treatment are at a high risk for suicide; a two to three-month wait for relief could be fatal.

As Dr. Matthew explains, ketamine works in hours, not weeks. For some patients, it could literally be life-saving. There is, however, a risk to the use of ketamine as a treatment. Like all medicines, there are potential side effects. In ketamine’s case, the main danger is the likelihood of addiction. That potential certainly does exist, much like opioid pain-killers have dramatically increased the number of people addicted to pain medication, often spurring them to try heroin as well.

How Does it Work?

Ketamine works differently than traditional anti-depressant medications and would be most helpful for patients who have “treatment-resistant” depression. As many as 40 percent of depressed patients don’t get symptom relief from traditional anti-depressants. Most traditional anti-depressants work by creating new synapses in the brain’s serotonin reception system, which is why that treatment can take several weeks to be effective. By contrast, ketamine treatment fosters the creation of enzymes required to stimulate connections between existing synapses, which may be why the results with ketamine are so immediate. While 40 percent of depression cases can be resistant to treatment, in ketamine trials 70 percent of people with resistant depression improved dramatically with its use. The National Institute of Mental Health sponsored randomized trials for both depression and bipolar disorder that have found significant benefits from the use of ketamine.

Risks and Concerns 

This story from NPR highlights some of the concerns surrounding the use of ketamine, including the fact that it is not currently FDA-approved to treat depression. Ketamine has been used as an anesthetic since the Vietnam War, but it can also cause hallucinations and lead to addiction. It was made a Schedule III substance in 1999, putting it on par with LSD in the eyes of the law. This is why many companies are seeking to create drugs that are similar to ketamine in their effect on depression but without the high. Both a nasal spray and a pill are being explored by two different companies as potential treatment options. These drugs are all still currently in the clinical trial phase, so it could be years before any of them are approved for depression treatment.

Using an unapproved drug when other treatments have failed is grounds for asking questions, but it isn’t necessarily too dangerous for us to feel comfortable with. Even if the drug is highly addictive, it is still being administered by a physician–the dose is highly controlled. And it is being used to treat a population of people, severely depressed and suicidal patients, who are more likely to be self-medicating with drugs and alcohol if they aren’t otherwise helped. Versions of ketamine, either in new sprays or pills as well as its current use intravenously, have been used successfully for years in various medical settings. And while ketamine can be addictive and dangerous, the cost-benefit analysis on ketamine has already been done in other medical situations.

Split Responsibilities 

Part of the problem with the use of ketamine is not necessarily its addictive potential or the possible medical complications, but that it spans two different medical categories and doesn’t really “fit” into either space. Doctor Carlos Zarate Jr., the chief of neurobiology at the National Institute of Mental Health, explains that ketamine is typically administered by an anesthesiologist, who isn’t qualified to determine if a patient should be taking it. But a psychiatrist, who could tell if the patient is a candidate for the drug or not–for example, a bipolar person on the verge of a manic episode–isn’t necessarily willing to administer the actual treatment. A specialty clinic or research trial would have both hands on deck–a psychiatrist to manage the psychological aspects of treatment and an anesthesiologist to handle the medical aspects and potential complications.

Ketamine already has an established track record in the medical community as a drug that can be used to stop physical suffering. It is actually the go-to drug in emergency rooms for children with serious pain. Ketamine can cause hallucinations and an “altered” sense of reality, even at the low doses that are used to treat adults with depression. But most of the negative consequences, such as hallucinations and addictive behavior, come from the drug being used in much higher doses and not under doctor supervision. The risk is still there but it has already been proven to be a risk that doctors are willing to take in other medical situations.

The problem with ketamine is much like the problem with opioid painkiller abuse. The opioid epidemic comes not from having and using opioids, when they are needed, but from not treating opioids in a way that acknowledges how dangerous they can be. It was caused by patients, doctors and drug companies that advertised, falsely, that the likelihood of addiction is low, pushing painkillers as the wave of the future. (If you’re interested in the institutional contribution to the rise of the opioid epidemic take some time to watch Frontline’s “Chasing Heroin”). But the lessons to be learned from the opioid epidemic are not to avoid new drugs that have addictive potential. Almost all powerful drugs have the potential for addiction and most medications have potential side effects. It’s a cautionary tale that speaks to the need to monitor treatment and remove financial incentives for over-prescribing and over-promoting new wonder drugs. We should approach the use of ketamine carefully, but not deny its potential usefulness because it can be abused.

Conclusion

Ketamine is not a miracle cure for depression. But, according to Dennis Hartman, who participated in a research trial for the drug treatment with the National Institute of Mental Health, it saved his life and allowed him to manage his depression the way one would manage any other chronic illness. In 2012, he helped found the Ketamine Advocacy Network, which advocates for the drug to be used as a treatment for depression. When you visit the website it starts a tracker which will count how many suicides have occurred, pharmaceutical sales have been generated, and how much economic loss has resulted from depression. If you check out the site, you will likely be surprised by how fast those numbers climb.

Sometimes the “next big thing” is a hoax or a Pandora’s Box with consequences we do not foresee–just as we did not have the foresight to anticipate the rampant abuse that would result from an effort to relieve pain with the development of opioid painkillers. But sometimes the “next big thing” in medicine is something like penicillin. If every time Alexander Fleming came across a moldy cantaloupe he threw it out, the world would be a very different (and far less populated) place.

Resources

The Washington Post: A One Time Party Drug Is Helping People With Deep Depression 

The Washington Post: Loneliness Grows From Individual Ache To Public Health Hazard 

The National Center For Biotechnology Information: Depression as a Disease of Modernity: Explanations For Increasing Prevalence 

DrugInfo: Australian Drug Foundation, Ketamine

NPR: Ketamine Depression Treatments Inspired By Club Drug Move Ahead In Tests

NPR: Club Drug Ketamine Gains Traction As a Treatment For Depression

Ketamine Advocacy Network

PBS: The Real Story Behind The World’s First Antibiotic

National Institute of Mental Health: Rapid Antidepressant Works by Boosting Brain’s Connections

Al Jazeera America: Could Ketamine Become the Next Great Depression Drug?

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Special K: “The Next Big Thing” in Psychiatry? appeared first on Law Street.

Every year 38,000 people in the United States kill themselves. In America, we have more people who are victims of suicide than are victims of homicide. Or car accidents. Or prostate cancer. Yet mental health care in the United States: how and whether it works, how it is funded, and  the challenges it faces, is rarely discussed. It isn’t something that we like to talk about.

In his book “A Common Struggle,” Patrick Kennedy goes into intimate detail about the alcoholism, drug addiction, and mental illness that he and his family have struggled with. As the title suggests it is a problem that is dealt with by millions of Americans–as patients, caregivers and loved ones. The book, in addition to trying to de-stigmatize mental illness, chronicles the passage of the Mental Health Parity and Addiction Equity Act of 2008. If you have no idea what that is you are not alone. According to a survey by the American Psychological Association, 96 percent of Americans have no idea that this law exists or that it requires insurance providers to treat a mental illness in the same way it would treat a physical one.

Mental Health and Mental Health Parity

Mental health care in the United States is faced with a two unique challenges: access and attitudes. The United States spends $113 billion a year on mental health care. Despite the significant investment, it is more difficult to get access to a provider for mental health services than it is to get access to a physical health provider. Nearly 90 million Americans live in a “shortage area” for mental health care providers–compared to 55.3 million Americans who live in a shortage area for primary care physicians. But an even greater barrier to treatment are the attitudes about mental health. When researchers looked into why people were refusing treatment, 71 percent said that they wanted to solve the problem on their own.

A response like that would be considered ridiculous if it was given after a cancer diagnosis. Yet, because mental illness is considered to be different from a physical illness, we don’t find this response as shocking in that context. Some people do deal with mental illness and addiction on their own, some people even do so successfully. But for individuals who want or need treatment, an attitudinal change that allows patients to believe they are entitled to receive it, and the ability to actually access it, is critical.

Take a look at this explanation of the situation given by Representative Jim Ramstad. This video was his commentary in favor of the Mental Health Parity and Addiction Equity Act of 2008. Essentially, this law requires that insurance providers treat a mental health issue the same way that they would treat a physical health issue, with the same co-pays, deductibles, and access to treatment, including treatment for substance abuse. Ramstad argues in favor of passing the law, citing himself as a success story for treatment.

The arguments dividing supporters and opponents on this issue are the same reasons that people don’t seek treatment: cost and attitude. The human cost of living with mental illness is very high but treatments for mental illness can also be extremely expensive. Treatment often includes therapy, which involves repeatedly engaging the services of a professional for hours each month. That’s a hefty price tag. When treatment involves medication, as it often does for serious mental illnesses like bipolar disorder and schizophrenia, the cost of the medications themselves can be staggering. This is often because the dosages need to be carefully calibrated, frequently adjusted, and generics are not always readily available. All of this involves more physicians and psychiatrists. Hospitalization and in-patient treatment can cost thousands of dollars for just a few days. Insurance companies are understandably reluctant to be responsible for providing these services.

The Costs of Mental Illness

It’s difficult to calculate society’s financial costs for the nearly 42 thousand deaths that were attributed to suicide in 2013. But a 2008 study by the National Institute of Mental Health attributed $193.2 billion dollars per year to lost earnings from mental health disorders in general–largely based on missed workdays because of mental health concerns. That study isn’t accounting for the lost productivity while at work or people who can’t work or are underemployed due to their mental illness. A more recent and more holistic view of the cost of mental illness would cite $444 billion, which includes treatment and the lost wages of patients but not caregivers, according to a report from USA Today. Even that isn’t taking into account the true total economic cost of mental illness.

In effect, what mental health parity does is shift some of the financial burden of treating mental illness to insurance companies, the same way that it does for physical illnesses. But it isn’t a bulletproof solution. One very key component in the bill, which Representative Ramstad addresses, is that mental health treatment would only be provided when it was considered a medical necessity. However, it isn’t clear what qualifies as a medical necessity.

Long-term therapy may be highly beneficial to an individual but may not be considered a medical necessity. A 72-hour psychiatric hold, also beneficial and potentially life-saving in terms of preventing immediate harm, might have a better chance of being considered a medical necessity. The long-term therapy, which could possibly prevent the need for the psychiatric hold, is in all likelihood the more expensive of the two options, just as physical therapy is a very expensive treatment for a chronic medical condition. Insurance companies can and do use medical necessity to thwart patients from using their insurance for treatment of mental illness.

The State of Mental Health Care in America

Mental health parity is an important step, but it does not do anything to address the problem of mental illness for the uninsured and doesn’t do enough to address mental health concerns for those on Medicare/Medicaid. It also does not deal with the much larger problems of access to appropriate treatment and the involvement of the criminal justice system.

The video below, an interview with Liz Szabo of USA TODAY about their series “The Cost Of Not Caring,” explains some of the economic costs of mental health care and how those costs are being borne by millions of Americans. The article that accompanies the series does an even better job of expanding on the concerns with the mental health care system in the United States.

Reduced investment in mental health services by state and local authorities produces a system where we still pay for the mentally ill, just in different ways than you might expect. The main effect of mental health parity is to move some of the burden from the individual to a private insurance provider. While the main consequence of reducing services for mental health shifts the burden from asylums, where the mentally ill used to go, and other institutions that were designed to deal with them, to hospitals and prisons. These already stressed institutions have difficulty coping with the added demands now placed on them, leading to a system that does an ineffectual job because it deals with the physically ill, the mentally ill, and criminals who actually need to be incarcerated as a unit–rather than dividing them into separate categories and treating them accordingly.

Better Alternatives

There are treatment options that can be tried, which may cost more at first, but produce better results in the long run for the individual with a mental illness and his or her community. To compare the problem to a physical one, if amputating a broken arm was cheaper than setting a broken bone and then using physical therapy to regain full range of motion–most of us would still not say that is the best treatment. Because in the long run, the loss of productivity to the individual and to society is much higher and the expense to fix the arm would be viewed as an investment in that person’s future. Why then, when someone comes to the hospital with a chemical imbalance in their brain, rather than misaligned bone fragments, do we not explore more expensive treatment options–ones that would be investments in that person’s most productive future given the nature of the illness.

In 2008, the National Institute of Mental Health began the RAISE project, to research Recovery After Initial Schizophrenia Episode. Researchers in the RAISE trial found that after the two-year study period was concluded, schizophrenic patients who received a model of treatment that included family counseling and help to secure a job–services that are not covered by insurance companies, which typically only pay for drugs and limited therapy for outpatient treatment–did better than patients who only got basic services.

The added cost for these services was about $3,600 a year for each patient and according to the researchers yielded a better quality of life for the patients. Which is, certainly, a difficult thing to quantitatively measure. Because the study only lasted for two years it is hard to say if, over the person’s lifetime with the illness, the initial investment will prove to actually prevent more costly complications like hospitalizations. But the initial results suggest that including this type of counseling and other services may be worth the long-term investment.

For a surprisingly cogent and unsurprisingly hilarious look at the issue of mental health and innovative treatment options, check out John Oliver’s segment on mental health:

Conclusion

Removing the stigma of mental illness by treating it in the same way you would treat a physical ailment is a positive first step towards dealing with the mental health care crisis in this country. But it is only the first step. Thousands of Americans die from mental illness every year. Millions suffer from it chronically and face the challenges of dealing with a mental disease daily.

Because it touches so many of us so intimately, mental health treatment in America is not an easy topic for most to discuss. Usually, it only becomes part of our public discourse in the wake of a mass shooting. But that’s like only talking about a disease if it is an air-born pathogen. Those diseases are the most obvious for us to see as a threat; nothing is sexier on the evening news than a flu pandemic. But it is the less glamorous food poisonings that might be more deserving of our attention. It’s messier and more embarrassing to talk about, but you are also more likely to be affected by it.

Resources

USA TODAY: Mental Health System Crisis

Goodreads: A Common Struggle 

American Psychological Association: Help Center: Parity Law Resources

Washington Post: Seven Facts About America’s Mental Health Care System 

The Kennedy Forum: Parity 

Centers for Disease Control: Mental Health 

The Huffington Post: US Mental Healthcare System

Slate: Is My Work Medically Necessary? How Insurance Companies Get Around Rules For Mental Health Care

New York Times: New Plan To Treat Schizophrenia Is Worth Added Cost, Study Says

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Mental Health Care: Should We Be Treating the Mind the Same As The Body? appeared first on Law Street.

Normally, eminent domain does not get a lot of discussion in presidential politics. In fact, outside of a relatively small circle of interested parties and intellectuals, it doesn’t get much discussion at all. The last time it got this much attention was a decade ago in the case of “Kelo v. City of New London” where the concept of eminent domain and the Takings Clause got to experience their moment in the sun.

The rise of Donald Trump as the probable if not presumptive Republican nominee for the presidency has brought this issue into the spotlight once again. Generally speaking, conservatives tend to be critical of the concept of eminent domain but Trump has professed the viewpoint that without eminent domain civic projects that we value would be impossible to complete.

But what exactly IS eminent domain? And the more interesting question: what should it include?

Pleading The Fifth: The Takings Clause

Eminent domain is basically the idea that the government can, in a specific set of circumstances, take your property.  The Takings Clause, which is a part of the Fifth Amendment that rarely gets invoked in movies or television prohibits the government from taking property unless certain criteria are met. The clause reads, “nor shall private property be taken for public use, without just compensation,” which is not a purely semantic distinction. Even those who support eminent domain would acknowledge that it is a violation of your property rights.

Land use law spends a good chunk of time on the Takings Clause, going through each of these elements. Over the years, the Supreme Court has had to define what private property is (while it seems simple enough, does it include the airspace above your house?), when it has actually been taken (in honor of the late Justice Scalia Google “regulatory takings” and “Lucas v. South Carolina Coastal Council”), and what is a public use. This is where much of the discussion of eminent domain has focused on recently in the presidential debates. In the video below you can listen to Jeb Bush and Donald Trump discussing the issue of eminent domain in regards to Mr. Trump’s conservative credentials and real estate dealings.

It may take a minute to unpack some of the arguments that are going on in this clip. The first discussion is whether the concept of eminent domain, where the government may take someone’s land for public use, is a good thing. There’s also whether it is consistent with “conservative” principles. Mr. Trump uses the example of a hospital as a public use and states that it would be impossible to build things like hospitals without eminent domain.

That’s probably true. If the government did not have the power to seize property (both the federal government and state governments have this power) then any private citizen who owned property where the government wanted to build a hospital could either refuse to sell and thwart the project or hold out for such an exorbitant price that it would make any new project too expensive to be undertaken. While it certainly wouldn’t be an irrational reaction–who wouldn’t want to sell their home for 100 times what it is worth?–it wouldn’t be a very civic-minded response and ultimately we would have fewer hospitals.

Keep in mind that the government does not just take your house. If it takes your property it does pay you for it, so it isn’t all bad news. Collectively, we have decided that we are willing to have a few of us get forced to sell our property, as abhorrent as that is to the American psyche, in favor of having things like hospitals and roads.

The second argument comes on the tail of the first–once we have decided that for a public use we are going to allow this violation of our property rights–what is a public use?  Hospital, yes fine. But what about parking spaces for your limousine?

Economic Development: “Kelo v. City of New London“

Although neither one references it, Governor Bush and Mr. Trump are having what I presume is a more spirited version of the in camera arguments that the Supreme Court had in “Kelo v. City of New London.” Things like hospitals, roads, and bridges are recognized by the majority of people to be public uses. But in the Kelo Case, the government was arguing that its plan to develop the land for the City of New London’s economic benefit was a public use. The government didn’t need to build an actual public structure, like a bridge, to be a public use, it just needed to be something that was benefitting the public as a whole.

The Supreme Court agreed with the city and ruled in its favor–an economic benefit to the public can be a public use.  And the government can take a piece of property (again, they do have to pay you something!) and then sell or contract with a developer, such as Mr. Trump, to build on the land.

Another dispute over eminent domain occurred in Lakewood, Ohio. As “60 Minutes” notes, the city of Lakewood wanted to take the Saleet family’s house in order to put in condos and a strip mall. While the Saleet family eventually won their dispute, allowing them to keep their home, the questions at the intersection of eminent domain and economic development remain difficult to answer.

This expansion of the understanding of what constitutes a public use has been met with opposition from people of various political stripes. One group, the Institute For Justice, which is a self-described libertarian public interest law firm, has been very active in pushing back against this understanding of “public use” believing that it is an infringement on property rights. In the video below the Institute for Justice explains some of the responses from state governments and individuals to the Kelo decision.

The Supreme Court in Kelo found the comprehensive nature of the city’s plan to develop the area to be a persuasive argument in favor of characterizing it as a public use. It wasn’t just building one hotel on the property and calling it a day, which may distinguish the issue in Kelo from other cases in the future where the government wants to get rid of a single “blighted” property in favor of a “better” economic option. This is what Governor Bush implies that Mr. Trump tried to do. But, in fact, they are having two separate arguments.

Mr. Trump’s attempt to buy property has nothing to do with eminent domain and linking his attempt to get someone to sell him their home so that he can expand on his existing property or build a new one mischaracterizes what eminent domain is. Eminent domain is purely government action. Not action by private citizens. Mr. Trump isn’t using eminent domain when he makes an offer on a property so he can build a hotel. Even if he uses, as is alleged, strong-arm tactics against elderly widows. His actions aren’t a government curtailment of property rights but rather a use of his property rights–any and all elderly widows that he might try to buy land from have the right to refuse his offer if they want to. It is their property to sell or not sell as they see fit. So talking about Trump’s behavior doesn’t really make sense in a discussion about eminent domain and what is or should be legally acceptable for government action.

The real issue is whether the government should be able to forcibly purchase property to promote economic development. Governor Bush’s argument is that position is not consistent with “conservative” principles. In this case, the “conservative” principle being that when the property is privately owned, the government should have to jump through some hoops to get to it. One of those hoops is that the government needs to make a case for why this is a public use. For many, economic development, however noble that goal is, does not meet that burden. Economic development may be a good idea but it isn’t within the scope of what the government is allowed to violate your property rights to achieve.

Others would argue that government is in the business of promoting good ideas, or at least it should be. And taking an area that is economically “blighted” and turning it into a collection of homes or businesses that improve the community is a good use of the government’s time and energy. We can’t let holdouts, whether they are doing so because of an intense love for their particular house or for an incredibly generous pay-day, halt economic progress that would benefit everyone in the community. They argue that the government needs to be able to promote not just the structural necessities of public life (a road or a bridge) but also the broader concerns that affect the quality of life. After all, people probably claimed back in the day that a hospital wasn’t a public use either, since it isn’t a strictly necessary structure. Yet now a hospital would be generally accepted by all but the most dyed-in-the-wool libertarians as a fair use of eminent domain. This is just the modern evolution of the concept of public use.

Conclusion

Eminent domain is sort of like taxes. Nobody necessarily wants to pay them but we all know that we need taxes or there would be potholes everywhere–the government wouldn’t be able to do anything. Even if we think of taxes as state-sanctioned theft, we let it go because “taxes are what we pay for a civilized society.”

There is a sliding scale–from a bridge to a hospital to a strip mall–and most may go along with it to the hospital but no further. Economic development is great and should be encouraged. But allowing a forcible purchase of property by the government to promote positive development is a bell that you can’t un-ring. It may not be the most interesting issue to think about (and certainly it isn’t the most interesting issue where Mr. Trump is concerned) but eminent domain is government power with very real immediate and future consequences that warrant discussion.

Resources

Primary

FindLaw: Kelo v. New London

Additional

Washington State University At St. Louis: A Brief History of The Takings Clause

CBS News: Eminent Domain Being Abused

National Review: Kelo v. City of New London Ten Years Later

IRS.gov: Tax Quotes

Department of Justice: History of the Use of Federal Eminent Domain

Brown Political Review: “Public Needs” Abuse Eminent Domain for Economic Development

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Blighted: What Exactly Is Eminent Domain? appeared first on Law Street.

Nearly 70 percent of American adults are overweight or obese. We spend trillions of dollars every year on healthcare and about half of that budget is spent treating so-called lifestyle diseases like diabetes and heart disease, types of which are largely preventable. The traditional image of a person in poverty being thin with hunger no longer rings true in the West and the developing world. The phenomenon of “fat with hunger” is now on the rise–people who can only afford cheap, processed carbohydrates that are bereft of nutritional value. They are consuming enough calories to live but they aren’t getting the appropriate nutrients to live well.

The problem is both cultural and personal. Americans have become more inactive in our jobs and our leisure activities and many people find it difficult to incorporate exercise into their schedules on top of their other responsibilities. In many areas, people are trapped in food deserts, where they have no access to nutritious options, or they simply cannot afford the types of foods they should be eating or a gym membership. These realities prevent many Americans from living a healthier lifestyle. But like other unhealthy habits, the structure of society can only take so much of the blame. Individuals still have a personal responsibility for their health.

If that is the case, how far should the government go to promote healthy choices? There are several tools that the government can use to encourage citizens to make certain choices. It can provide tax breaks or cash incentives, advocate, re-design cities, and punish those who don’t comply. But how much do we want the government to “help” us make good choices?

Carrots and Sticks

In policy making, as in diplomacy, there are carrots and sticks–where “carrots” are rewards and “sticks” are punishments. Both are used to incentivize positive behavior. Ideally, people will behave in such a way as to avoid the stick and/or get the carrot, and that behavior will benefit them and society. Mexico, which now has a rate of obesity similar to the United States, uses the carrot approach in Mexico City, where riders who do 10 squats are able to ride the subway for free. It’s a direct and immediate incentive to do some exercise. Mexico is also using the stick approach by taxing highly caloric food and beverages.

Take a look at this explanation of what Mexico is doing from PBS:

The program in Mexico is a good example of the four tools governments have at their disposal: direct policy and physical changes, financial rewards, financial punishments, and advocacy. Mexico gives free subway rides to participants, taxes products it doesn’t want citizens to consume, builds new public gyms in cities, and uses the bully pulpit to promote healthy lifestyles.

The United States is using some of these methods as well. In her Let’s Move campaign, First Lady Michelle Obama takes advantage of her unique ability to communicate with the public to advocate for increased physical activity and healthy eating, particularly for children and adolescents. She has taken some flak for her efforts but many Americans are supportive of public figures using their stature to promote healthy living.

Cities in the United States are also taking their own steps to change behavior. For example, Washington, D.C. is going to eliminate fees for residents in city gyms. It cuts revenues for the city, but officials believe that in the long run it will save money in terms of costs for treating chronic diseases that are associated with obesity. If free access to a gym encourages individuals to exercise who otherwise would not, those individuals will be healthier and it will cost less to treat diseases. Free gym access is not as direct a financial benefit as a free subway ticket, but it is an example of a direct financial reward that a city can offer to mold behavior. In Chicopee, Massachusetts, city employees can earn $25 dollars a month for walking 7,000 steps a day, five days each week. The cash incentives seem to work as participation increased significantly after a financial reward was put in place.

D.C. is also considering adding more bike lanes in areas where residents are commuting to work via bicycle, to further encourage this behavior. These changes are sometimes met with tension–bike lanes can reduce available street parking and may favor one group of citizens over another–and sometimes these proposals are viewed along racial and socio-economic lines. In D.C., altering the city’s landscape could adversely affect older, black residents in those neighborhoods who do not tend to bike to work. On the other hand, the understanding of who is actually biking to work may be mistaken.

Repeat Users

Companies actively market products that contain high levels of salt, sugar and fat to consumers. They have tapped into a delicious, deadly, and biologically motivated combination of chemicals that keep consumers coming back for more. Anyone who has ever had fast food can appreciate the unholy alliance of the salty and the sweet and food companies profit from the natural human tendency to seek out highly caloric food as a means of survival. The marketing of these products is part of the issue with the rise of obesity, according to Michael Moss the author of “Salt, Sugar, Fat: How The Food Giants Hooked Us.“

Watch the video below as Moss talks with a former CDC official on PBS NewsHour.

It is precisely the “heavy users” who we want to dissuade from purchasing fast food or unhealthy food in grocery stores. Taxes on these foods, like the ones used in Mexico, can alter these consumption patterns. But they might just be making it more expensive for people to purchase the foods they want or the only kinds of foods they have access to. These taxes are also difficult to achieve politically, with backlash from both consumers and the food industry.

Oklahoma City, a community where obesity rates have tripled in two decades, has made some progress in combatting obesity, but it did not have the political will or ability to do so by challenging the fast food industry. The principle way that Mick Cornett, the mayor of Oklahoma City, chose to combat obesity in his city was through the encouragement of individuals to take personal responsibility for their actions and to make better choices. Instead of taxing soda, or limiting the amount that can be sold, the emphasis was placed on encouraging people to not order a 40-ounce soda, even though they can.

The argument of personal choice also applies to school lunches. For example, in Oklahoma City, officials need to determine options to offer children. Kids want to eat burgers, pizza, and other unhealthy foods, which parents may not want their children consuming on a daily basis. But those are often the more affordable options to make, and what the kids will eat. Big businesses like Tyson, which supplies the chicken for Oklahoma City schools, have a stake in school menus. There are also cultural clashes that make encouraging healthier options more difficult.

Oklahoma City faces the same problems that America in general faces when combatting this issue: a powerful and well-organized lobby that fights against taxing sugar and fat as well as an addiction not just to their products but to the profits and tax revenue that they generate. Oklahoma City relies on fast food companies like Sonic to provide jobs that produce sales tax revenue because their budget is entirely made from sales taxes. Cities that are funded this way want fast food restaurants to move there, which means not having additional vice taxes on their products. Then they also have the added incentive to encourage people to eat there; creating a tug of war between the desire to keep citizens healthy and keep city coffers full.

Conclusion

Placing a prohibition on the consumption of sugar and fat may not be the answer to the obesity epidemic. In New York City, the court rejected a ban on how many ounces of soda a business can sell in a serving and Americans find restrictions on freedom when it comes to food to be unpalatable. But there are other means that governments can use to incentivize people to make different decisions when it comes to their food and health-related habits.

Given the political headwinds that cities face when taking on food companies it may be more effective to address the issue of exercise more directly rather than taxing unhealthy foods. These taxes are unpopular and can punish the very populations that these policies seek to help, even if they do have some success. By contrast, making it easier for people to have access to fitness classes and exercise in their communities can help save money in the long run. Doing so may also feel less invasive to people worried about the extent to which government is trying to govern our choices.

Resources

Slate: You Should Get A Tax Deduction For A Gym Membership

Quartz: Mexico City Is Offering Free Subway Rides In Exchange For Doing Squats

PBS: Did You Know? The Story of Theodore Roosevelt

White House: Let’s Move

Washington Post: DC Will Eliminate Fees At City’s Fitness Centers In 2016

WAMC: City Offers Employees Cash Incentives To Keep Fit

Washington Post: More Than 20 percent Of Residents Bike To Work in These Three D.C. Neighborhoods

GoodReads: Salt Sugar Fat

Politico: How America’s Top Junk-Food City Went On A Diet (And Fattened Its Economy)

NY Post: Highest Court In NY Refuses To Reinstate Big Soda Ban

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Should the Government Be Involved in Promoting Healthy Lifestyles? appeared first on Law Street.

Like most topics in law school, child support is discussed first by talking about the theoretical reasoning behind it and then with a series of very dry formulas for how it actually works in practice. In theory, child support payments from the non-custodial parent are not meant for the other parent, rather it is money for the child. The custodial parent can’t bargain it away, he or she is supposed to be acting in the child’s best interest and spending the money to support the child. It is more like a responsibility that both the parents have to the child than a debt owed to the custodial parent.

Also, like most topics in law school, the real world application of the law has very little to do with supporting the rationales behind it. The goal of the collection of benefits we call “welfare” as well as child support is to provide basic necessities for children and help lift them out of poverty. But does the current system actually accomplish the goals that it is set up to accomplish?

Magical Thinking: Calculating and Collecting Child Support

For parents who want to receive welfare benefits, there may be a perverse incentive involved with seeking the child support that is owed to their children. Receiving child support, Social Security assistance, or having a job may leave you ineligible to receive welfare assistance. A recent feature story from the Washington Post about poverty, particularly in the deep South, illustrates the challenges faced by people who are in deep poverty but are unable to get help for their basic needs. The article’s main subject, Lauren Scott, is a single mother looking for work. Although she was not receiving child support from the father, she was deemed ineligible for welfare benefits. The other women featured, who were seeking benefits with Scott, were told not to apply for benefits if they were receiving child support payments for their children. In this particular county in Georgia, the eligibility criteria did not take into account the possibility that a person receiving child support could also still need welfare benefits–it’s one or the other.

A parent who needs benefits, typically the mother, may choose to not seek child support payments from the non-custodial parent, typically the father. If the parent thinks they are eligible for welfare benefits as long as they don’t receive child support payments they may actually be better off foregoing the child support, or they believe they would be.

If the non-custodial parent is able to be located, they may be “judgment proof,” which is the legal term for a situation where there is no income or property to pay off a judgment against you, regardless of how justified the creditor may be in trying to collect. If the parent lives in a state that garnishes wages for unpaid child support but doesn’t have a job in the first place, the custodial parent won’t be able to collect, even though the child is owed that support.

Many of the non-custodial parents who owe child support are, in effect, judgment proof. As of late 2015, unpaid child support in the United States was $113 billion. Most of that debt, about 76 percent of it in 2013, is owed by individuals who earn less than $10,000 a year. In her comments to NPR, Vicki Turetsky, the head of the federal Office of Child Support Enforcement, refers to the current structure for the calculation and attempted collection of child support payments as “magical thinking.” Even if a non-custodial parent declares no income when the child support order is being issued, the court will calculate what they owe based on a fictitious job–often full-time minimum wage work. Incarceration is also considered “voluntary employment” in terms of calculating child support.

Take a listen to the report here which explains how child support is calculated and some of its consequences.

Perverse Incentives

Calculating child support payments based on income that does not exist and then punishing individuals for non-payment doesn’t lead to an increase in collected payments. The way that child support payments are distributed to custodial parents who receive welfare benefits may also provide a perverse incentive to those beneficiaries to not seek child support. A perverse incentive is a policy that is meant to encourage a certain positive behavior but actually provides an incentive for a negative behavior, often the opposite of the original intention. In the case of child support payments, we want children to benefit from the support they are entitled to, and when that is not enough, to supplement that with the social safety net. But by not allowing custodial parents access to both–by eliminating welfare assistance when they receive child support–we cut potential revenue streams available to that child and even encourage parents not to try to collect child support.

Many states garnish wages for unpaid child support payments. In Illinois, the state can use some of the money from the garnished wages to offset the TANF (Temporary Assistance for Needy Families) payments made to custodial parents. No more than $50 of the child support payments were actually given to the child if their parent was receiving welfare. States can use garnished wages to replenish their TANF funds, which are used for the custodial parents welfare assistance. This occurs even though, in theory, that child support is owed to that individual child from that individual parent.

The federal government allows states to pass on up to $200 dollars for two children through child support payments that are received from garnished wages, allowing that money to make it to the custodial parents. But it does not give them the discretion to give the entirety of the child support payment to a parent on welfare. So even if the state wanted to encourage a parent to seek child support while they were also receiving TANF payments, they are only able to collect some of what they are owed.

Reform Attempts

States have tried other ways to incentivize parents to make child support payments and to engage in other positive behaviors by dealing with the debt they find themselves in for missed payments. As NPR explains, Maryland is implementing programs to help forgive child support debt  and clarifying the difference between child support and state-owed child support. State-owed child support is a child support payment that will go back to the state to reimburse taxpayers for the welfare payments they made to the custodial parent.

For example, Maryland is trying to forgive 10 percent of the parent’s child support debt in exchange for the completion of a month-long employment training program and then getting a job. It’s a win-win for both the state and the parent because the state has no ability to collect the outstanding debt from an unemployed person. Put simply, forgiving the 10 percent is a smart way to make collecting the outstanding 90 percent possible. It also benefits the parents who finish the program because their debt burdens are lowered and they now have a job.

Completing a Responsible Fatherhood Programs will get you another 15 percent and you can then eliminate 50 percent of your outstanding debt if you keep up to date with payments for a year. So an unemployed father in Maryland who owes $10,000 in child support debt, which he is completely unable to pay, may be able to eliminate 75 percent of that debt by participating in an employment program, a parenting class, and by showing that he can, when employed, consistently be relied upon to pay what they owe. The state did lose that $7,500 that it forgave. But going forward, the child is now receiving the support to which they are entitled. If that parent had remained unemployed, the state would have still been owed $10,000 and the debt would continue to grow. These experiments in Maryland have yielded positive results, collecting twice as much as state forgave.

Conclusion

The idea that parents should be financially responsible for their children is deeply ingrained in the way that our child support system is set up. The policy is designed to make sure parents are held accountable for their children The image of the “dead-beat dad” also indicates that parents who don’t pay child support do so because they choose not to, not because they can’t afford it. However, the data indicates that individuals who owe child support are typically men who make less than $10,000 a year. These are men who are unable to make the payments as they are initially calculated, especially if they are currently or have previously been incarcerated.

The system also forces many people to choose not to seek child support. When forced to choose between a potential welfare payment and a potential child support payment, many parents would choose the welfare payment. A system that reduces payments, but does not eliminate them completely, would provide an incentive for parents to seek support. Moreover, the children can only benefit if the parent is able to pay the support in the first place.

States that have begun to experiment with debt relief measures have found that they can increase the payments they receive. Other states have sought to stop the accrual of child support debt for individuals while they are incarcerated. Both of these measures have had positive results because they allow parents who owe child support to at least pay part of their debt

The underlying goal should be to help raise children out of poverty and provide for their basic necessities. By structuring systems that incentivize parents to seek–and enable the other parent to make–payments, states can increase the amount of support that children receive and lift them out of poverty.

Resources

NY Times: Poverty and Perverse Incentives

The Washington Post: Lost Opportunity In the Deep South Part 4

Scientific American: Magical Thinking

NPR: Some States Are Cutting Dad’s A Deal On Unpaid Child Support

NPR: From Deadbeat To Dead-broke: The Why Behind Unpaid Child Support

NPR: How U.S. Parents Racked Up $113 Billion In Child Support Debt

Chicago Tribune: Welfare Law Formula Doesn’t Support The Family

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Blood From A Stone: Child Support’s Perverse Incentives appeared first on Law Street.

In American culture, there is a deeply ingrained moral value placed on work. On having an “entrepreneurial spirit” and a strong work ethic. It is part of what makes America a great country. “Greed is good” may be the slogan we use to describe capitalism, but for those of us who get up in the morning to go to work, it isn’t greed that motivates us. It is the sense of purpose and dignity that we get from our jobs and from doing those jobs well. And, from needing to eat.

Most Americans agree that there is a standard of living that we should not allow our citizens to fall below, even if it means that we use some of our resources to help them. We don’t think it is morally right for fellow citizens to starve, especially children. Our policies on public assistance reflect that belief and try to provide the very basics of life to everyone.

These policies also reflect a tension between American generosity and the American ideal of the entrepreneurial spirit. In an effort to both prevent hunger and to protect the American work ethic we reformed assistance programs to eliminate cash benefits and to tie receiving benefits to work or the search for work. It has led many recipients of SNAP assistance, more commonly referred to as food stamps, to sell their benefits for cash rather than using them for food. This is a crime and may carry fines, jail time, and a loss of benefits. One that we spend a lot of time and effort trying to eradicate. But should we? Or should we be turning a blind eye to, or maybe even encouraging, the sale of food stamps for cash?

Say It With Cash

Take your net income per month and divide it by 30. For most of us, the amount is probably more than $2. Yet many Americans are living on $2 a day or less.

In the book “$2 A Day: Living on Almost Nothing In America,” authors Kathryn Edin and Luke Shaefer go into a detailed explanation of the history of welfare reform in recent decades and a series of interviews with Americans who live on $2 a day or less. In October 2015, PBS interviewed Edin who spoke about some of the book’s major themes:

The book’s central theme is that while food is the most important necessity for people in poverty, they also have other needs that can only be met with cash. Goods like electricity, clothing, and phones might be considered luxury items but are vital tools in looking for work. Because they have no other source of income they end up selling things to get cash–like plasma, sex, and food stamps. The cash that they get is able to be used for necessities that food stamps can’t pay for.

The beauty of cash is that it allows you to purchase whatever you need with it. If at that particular time your most pressing need is clothing, cash allows you to sacrifice your need for food in favor of clothing. It gives the person the choice of how to best allocate their resources. The downfall of course, from the point of view of the taxpayer, is that a recipient of cash may decide that drugs or alcohol, and not food, is their most pressing need and use the cash for that. It is partly this fear of misuse that encouraged the reformation of welfare from cash benefits to benefits like SNAP, where recipients are locked into only buying food with their EBT cards. It also drives the movements emerging in many states to prevent these benefits from being used for certain luxury food items or junk food items.

Contract Of Adhesion

For many, the main concern with the sale of food stamps is not that people are selling them but how much they are getting. Selling your food stamps is a terrible deal. The going rate for $100 worth of food stamps is between $50-60 dollars depending on what part of the country you are in. By selling your food stamps, you’re losing about half of your purchasing power. In some places, if the store owner is particularly friendly, it can be a little better, but generally, sellers take a loss.

The relationship between food stamp buyer and seller is an unorthodox example of the legal concept of a contract of adhesion. A contract of adhesion is a legal phrase for “raw deal.” Essentially, when the bargaining power of the parties is very unbalanced, so much so that the weaker party really can’t meaningfully negotiate the terms of the contract, courts may take a look and invalidate the contract or provisions of the contract that are “unconscionable.” Typically, contracts of adhesion are things like insurance contracts, mortgages, and credit cards. The little guy versus the big guy. These contracts are often “boilerplate” meaning that they are pre-written and the same for everyone. The little guys here aren’t special and don’t really have a way to haggle with the big guy to get a better deal. So courts will give those contracts a closer reading in a light that favors the little guy.

Selling your food stamps is a lot like that. For one thing, if you need the cash you NEED the cash. Just like someone who is buying a house really does need a place to live and maybe can’t negotiate with the lender. Only perhaps more so because a home buyer doesn’t necessarily need that specific house. The cash buyer may not also have the luxury of shopping around for the best rate. Just as a home buyer may not have enough good options for a line of credit, the cash buyer may not have enough potential buyers they can go to–there may only be a few people willing to buy food stamps in a given area.

The illegal nature of the sale has the effect of making the contract even more unfair for the seller because the buyer is charging a fee to assume that risk. The greater the risk of a fine or jail time to the buyer, the more the money cost. So instead of getting $60 for your $100 worth of food stamps you might get $50. These are the same issues that prevent the seller from negotiating for a better price. Someone might be perfectly willing to give them $85 in cash for $100 in food stamps. But sellers may be reluctant to shop around because doing so increases the likelihood that they could be caught. Increasing sting operations, which are designed to stop the sale of food stamps, may only drive the price down and may not have diminished sales meaningfully.

This video from Democracy NOW! provides another account of how SNAP recipients are selling their food stamp benefits.

In 2012, the USDA’s Office of the Inspector General, which is in charge of prosecuting SNAP fraud, devoted half of its resources to combating SNAP fraud and abuse. This includes both fraud in collecting benefits when you shouldn’t as well as “trafficking,” the official term for selling food stamps. That year it investigated 15,000 stores and did 4,500 sting operations. Out of the 15,000 stores, 2,100 of were either shut down or sanctioned, meaning that 14 percent of the stores were punished. The 4,500 undercover investigations resulted in 342 convictions, about 0.75 percent.

The problem with the selling of food stamps is that we aren’t sure what the sellers will be buying with their cash. Most of us are sympathetic when we hear about a woman who sells her food stamps to buy diapers, which you can’t buy with food stamps. Even if that activity is illegal, many of us do not find it to be quite so immoral. But because the sale of food stamps is a contract of adhesion that mother, and many like her, is able to buy a lot fewer diapers than she normally would be able to after selling her food stamps. And we fear that she won’t be using it to buy diapers at all but to buy alcohol or drugs.

This is a legitimate fear. Changing the program to one that is purely cash assistance would allow recipients to use the money on anything they want to. That is both the benefit and the drawback of that change. They may choose to buy diapers or electricity, or they may buy vodka. There would be no way to effectively control their spending if the benefit was pure cash.

The Parable of The Talents

There was one story in “$2 A Day” of a SNAP recipient spending her benefits on junk food. Rather than buying healthy foods, she chose to spend it partly on transportation (through an illegal conversion from food stamps to cash) and partly on cups and Kool-Aid. She was able to make popsicles and then sell them for a dollar each–increasing her income with that initial investment. Rather than taking the 50 percent value of her food stamps in cash and buying her other necessities, she took that cash and turned it into more cash.

She’s a criminal and an entrepreneur. The cash from the food stamps was a greater benefit to her than the food stamps themselves. So how do we craft a policy that will protect the taxpayer interest in keeping that money from being spent in inappropriate ways while still promoting the core American value of the entrepreneurial spirit?

Proposed Reforms

Reformers from all points on the political spectrum have advocated amending welfare benefits such as SNAP and TANF (Temporary Aid To Needy Families) in an attempt to help those programs combat poverty in a more meaningful way. Many of these reforms focus on trying to change the incentives for beneficiaries by encouraging behaviors that are thought to alleviate poverty and provide social benefits, particularly marriage, in addition to encouraging work. Republican presidential hopeful Jeb Bush proposed eliminating the various programs that we call “welfare” (TANF, SNAP, etc.) and instead provide states with block grants so that they can choose how to provide benefits. Currently, states have a lot of leeway in how they structure their benefits–which leads to a lot of differences in the support people can receive in various states–but they are all within the framework of meeting federal government criteria to get funding. That usually means work requirements. Eliminating the need to satisfy federal requirements would allow states to experiment further.

One positive aspect of that approach is to use federalism to our advantage and allow states to each try a slightly different method of delivering benefits to low-income individuals. But it does not change the need that many poor individuals have for cash benefits who qualify for SNAP but not TANF. States are unlikely to adopt less stringent work requirements for aid, in fact, the trend has been in the opposite direction. In Maine work requirements were tied to food stamp benefits in 2015, which resulted in a sharp reduction in the number of people receiving SNAP benefits.

Other Possible Solutions 

One solution might be to develop a hybrid system for benefits. Like most of the changes proposed it would require more of an investment in the program. But we could set up a system where the SNAP benefits are primarily for food, with a small portion of the benefits made available in cash as well. That cash might be used for bad purposes, but if only a portion of the benefits was available in cash then not all of the benefits would be “wasted.” Some would still need to be used for food though they could still be sold on the black market. The initial investment would be in determining the correct ratio of cash to food stamps but it wouldn’t require as much monitoring as other options.

There is a government program already in existence, TANF, which does provide cash assistance to families that qualify. This program was designed as a replacement to Aid To Families With Dependent Children (AFDC) and sought to tie cash assistance to work requirements. To get funding for the program from the federal government, states must maintain certain percentages of working recipients. The goal of tying work requirements to the receipt of assistance is to encourage people to seek work and to make sure that families do not develop a cyclical dependence on TANF. There are also time limits placed on the benefits for that same reason.

The problem is that for many people, particularly after the Great Recession, they are unable to find employment that can satisfy these work requirements. This has cut the amount of people receiving cash assistance drastically since 1996. In 1996, 68 out of 100 families in poverty received TANF. In 2013, only 26 out of 100 families in poverty received it. Cutting the number of people who are eligible makes it so fewer people receive benefits, but that does not actually reduce the number of people in need. Even if TANF was an effective program to assist the working poor it does nothing for families who have fallen out of the mainstream economy almost completely.

Another option is to increase the number of vendors of legitimate products that we want people to purchase who accept food stamps. Instead of making food stamps into cash just make them more like cash. Encourage, or require, utility companies and clothing stores to accept EBT cards as payment. That way recipients can use an EBT card to pay for electricity or clothing without having to take the loss of purchasing power that accompanies turning it into cash on the black market.

There are some programs that attempt to deal with the needs for a phone and for utility subsidies for low-income Americans. For example LIHEAP (Low-Income Home Energy Assistance Program) provides federal funding to states to assist families with their utility costs. However, each state can set its own eligibility standards, which is true of the other programs as well. As a result, the rate of people receiving benefits ranges widely across states. In states where you need to receive TANF in order to qualify for LIHEAP, the non-working are once again left out.

A final option would require more manpower to distribute aid but might do the most to both encourage personal responsibility on the part of the benefits recipients as well as eliminate potential fraud: working with beneficiaries to help figure out what their greatest needs are and then tailoring their benefits accordingly. The poor are not a monolithic group. Those in rural areas may be able to supplement their diet with home-grown food and so may need less in food stamps but more in their transportation budget. Someone who is poor in an urban area might be able to travel on foot while they hunt for work but because they live at a shelter they need a cell phone to be able to contact potential employers. Matching the benefits more closely to the individual needs satisfies our core value of encouraging personal responsibility while also protecting our interest in only spending our tax dollars on items we approve of.

Conclusion

SNAP recipients selling their benefits for cash is a growing phenomenon that is unlikely to go away even with more vigorous efforts to combat it. The types of needs that the poor have here in America almost require the use of cash rather than food stamps alone. Even so, Americans struggle with how to balance our values: concern for the poor and the promotion of the entrepreneurial spirit.

Resources

Goodreads: $2.00 A Day: Living On Almost Nothing In America

Fox News: State Food Stamp Purchases

The New York Times: Food Stamp Fraud, Rare But Troubling

Cornell University Law School: Legal Information Institute: Contract of Adhesion

CBS: Food Stamp Recipients Selling Benefits For Cash

United States Department of Agriculture: Food and Nutrition Service: Fraud

The Weekly Standard: Food Stamp Trafficking Up 30 percent From 2008-2011

The American Prospect: Stop Worrying About Food Stamp “Fraud”

Government Accountability Institute, Profits From Poverty: How Food Stamps Benefit Corporations

SNAP to Health: The History of SNAP

Center on Budget and Policy Priorities: Policy Basics: An Introduction to TANF

Journalist’s Resource: Inequalities In U.S. “Safety Net” Programs For The Poor

CNN Politics: Jeb Bush Releases Welfare Reform Proposals

International Business Times: Which US States Have The Most Welfare Program Benefits?

The National Review: Getting Welfare Right

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Entrepreneurial Spirit?: Behind the Sale of Food Stamps appeared first on Law Street.

When the topic of prostitution comes up in conversation, most typically do not consider it a potential career option. Instead, we tend to think of prostitutes as young girls who are exploited and forced into prostitution by older men. The victims and villains are clearly cast. This situation is all too common and many young women around the world– and yes, even here in the United States–are kept as sex slaves.

But there are also prostitutes who choose sex work as a profession: people, and not just women, who were not forced into becoming prostitutes but chose that as their career. And then there are people in the middle. People who were coerced into prostitution by economic circumstances but not outright force. Individuals who may want to leave but have no other options to fall back on and no social services to help them.

All three of these sets of circumstances need to be dealt with. Victims who have been enslaved, people who see prostitution as their vocation, and those in the middle. Policy initiatives and laws that attempt to deal with the sex trade need to come up with a way to address the needs of these three communities. Which policies provide the best supports for all three kinds of prostitution? Is there a way to eliminate abuse while empowering free choice?

Models for Prostitution

There are several different models to choose from in crafting legal and social policy to deal with prostitution. One method is to criminalize both the purchase and sale of sex. This approach is based on the notion that individuals on both sides of the issue are criminals and immoral actors. This view of prostitution, a Victorian morality model, is the least popular. People still often have a moral problem with prostitution but generally view the relationship as one of exploitation, rejecting the view that a prostitute is just as morally guilty as a pimp.

The more popular view of prostitution is that the purchaser and the facilitator (typically called a trafficker or a pimp) are the criminals and the person being sold for sex is the victim. This innocent victim model is the view that underlies efforts to either partially or completely decriminalize prostitution while promoting “end demand” initiatives. Those who hold this view want facilitators and purchasers to be punished in a variety of ways but would not punish prostitutes themselves.

This view is encapsulated by the following clip of a “20/20” documentary on prostitution. The prostitutes interviewed are portrayed as women who were victimized and ones we should be sympathetic toward.

The third model of prostitution is one that acknowledges the existence of non-victim prostitutes, an entrepreneur model, which therefore advocates for the legalization of prostitution. This model is the most controversial because it would place prostitution on the same moral footing as other “vice” crimes, such as gambling. This would mean viewing it as something we may not personally like, but isn’t quite immoral enough to justify banning entirely. The moral stigma against prostitution is so heavily ingrained in our culture that most people reject the argument like, ‘it’s okay, it’s just like cigarettes really,’ on their face. But, the argument that prostitution isn’t as morally bad as cigarettes would not get much traction either.

Models for Policy

Recent efforts have been made in the United States to decriminalize prostitution and to push new “end demand” initiatives. Most of these efforts are actually efforts to decriminalize the sale of sex, as was done in Sweden, but keep trafficking or purchasing as punishable offenses. “End demand” initiatives seek to increase the penalties for clients who buy sex in an effort to make its purchase so costly and difficult that clients stop engaging in it. The hope is if clients do not feel that they can safely purchase sex, the industry will starve. As the demand for these services decreases, the incentive for traffickers and pimps to exploit sex workers will also dissipate.

End demand policies use a variety of instruments to make purchasing sex more difficult or costly. Fines, jail time, rehabilitation for solicitors, and good old-fashioned shaming like publishing offenders names in newspapers have all been used. But there isn’t any clear and convincing evidence that these methods actually do reduce the demand for sex work. On the contrary, there is some evidence that it may be making conditions for sex workers worse. While ending demand may free a sex worker from fear of prosecution, it keeps the pressure on clients, which may actually drive the market for sex even further into the shadows.

In Illinois, advocates of these initiatives, such as the Chicago Alliance Against Sexual Exploitation, go further in their attempts to end the demand for prostitution by trying to instill in young men the belief that buying sex is wrong. These campaigns are part of a larger sex-education plan that seeks to make commercial sex stigmatic not only for the prostitute but for potential clients as well. Legal changes are an important component, but cultural changes are also emphasized.

The biggest criticism of these efforts is that they do not help sex workers. Making it more difficult for clients to purchase sex not only affects the buyer but also the seller. One drawback for the sex worker is less time and transparency to negotiate. Because the rationale behind these policies is based on a model of prostitution involving a pimp-victim relationship, the end demand efforts don’t want to facilitate better discussions between clients and prostitutes. Some sex workers argue that these laws make their conditions less safe.

The other option is to legalize prostitution entirely. The following interview with Maggie McNeill, author of the blog The Honest Courtesan, does an excellent job of summarizing the viewpoint of those who argue that some voluntarily engage in prostitution and think it should be legalized.

The argument in favor of legalizing prostitution is best viewed as an argument in favor of the freedom to contract. It removes the moral stigma from prostitution found in both the Victorian and the end demand models and replaces them with a model of prostitution that includes those who freely choose it as a career. The entrepreneur model would argue that if a person wants to sell a sex act they should be free to do so–just as they are free to sell other personal services. There is also evidence in places where prostitution was legalized, as we saw in Rhode Island from 2003 to 2009, that the conditions for sex workers improve and violent crime is reduced.

This view does not deny that there are people, particularly women and children, who are enslaved as prostitutes. There are significant issues with the rape and abuse of prostitutes globally and in the United States, but supporters of the entrepreneurial model argue that the legal framework for combatting these abuses already exists. For example, to form a contract to commission a piece of artwork the purchaser and the buyer both need to be able to consent. Those who can’t consent because of age or mental incapacity can’t form that contract for art. Similarly, they wouldn’t be able to form that contract to sell or buy sex.

But for those concerned about violence and exploitation, to say that contract laws are enough of a tool to protect children from rape and trauma is insufficient. In fact, the most compelling criticism of this approach is that it does not do enough to combat violence. Other approaches may over-correct by disallowing voluntary prostitution, but that may be a better alternative for those whose primary goal is to end sexual violence.

The Murky Middle

There is perhaps a middle ground between the view of prostitution as pure victimhood and prostitution as the empowered entrepreneur. It’s a model that acknowledges the murky middle in which people become sex workers out of economic necessity, not through enslavement, but who may still need additional protections that are not present in other service industries should also be explored.

In contract law, a contract that is entered into because the defendant coerced the plaintiff with the threat of economic harm can be voided under the doctrine of “economic duress.” It’s a form duress that isn’t quite duress, yet may still be grounds to void a contract. However, it isn’t a very popular doctrine because it is so vague.

The court can grant relief to the plaintiff if they can show evidence of coercion or intimidation. This is not saying that the person is incapable of entering into any contract or that they would always be the victim in a contractual exchange. Rather, it merely acknowledges that in this particular contract his or her consent was not freely given and some restitution should be made.

Similarly, a middle-ground approach would acknowledge that there are contracts for sex that are entered into where both parties provide full consent. Those contracts, like the vast majority of contracts that we engage in every day with varying degrees of formality, would not need to be challenged. They may need to be regulated or taxed, like any other business, but they are not inherently void because of their subject matter.

This approach would also acknowledge that many of these contracts may be the product of coercion. In those cases, legal remedies to prosecute crimes such as rape, kidnapping, and theft should be employed. If they aren’t yet tough enough to bring violent criminals to justice, or not written in such a way to include crimes against sex workers, then they should be strengthened. Societal remedies and safety nets also need to be expanded so that sex workers who were victims of crimes can get some help, and so those who are at risk of becoming the victims of sexual slavery are prevented from becoming victims. Any change in policy, whatever the moral model it is based on, needs to include more tools for law enforcement to combat sex slavery. But supporting a vigorous effort to punish traffickers and slave traders isn’t tied to one set of policies for prostitution.

A great example of a combination approach to prostitution is how New Zealand treated the issue in 2003. According to the New Zealand’s Prostitute Collective, the sex workers of New Zealand gave input on the new laws in a push to reform local laws and policies. The results are a mixed bag of protections for sex workers, which also presuppose that there is a unique ethical concern with selling sex. For example, a sex worker cannot be compelled to have sex with a particular client and cannot have pay reduced for refusing sex with a particular client.

The law also adds in protections for sex workers under the age of 18 while borrowing from the end demand legislation ethos. It is a criminal offense for a manager or brothel owner to hire someone under the age of 18 for sex, or to pay for their services as a client. But it isn’t illegal to sell sex if you are under 18, meaning that punishment rests solely on the purchasers and traffickers.

Conclusion

The debate over how to deal with prostitution is an ongoing policy problem for everyone concerned about human trafficking. It also is an example of how moral sentiments and the way they can clash with modern interpretations of personal freedom can impact policy decisions.

Our culture makes intense moral judgments about sex workers. When we refer to someone as a “whore” it usually is not a comment on that person’s actual profession but meant as an insult. These moral judgments are unlikely to change in the near future and certainly won’t change just because a law or policy changes. But changes in policy can have a profound impact on the lives and safety of our citizens as evidenced by the dramatic change in the number of rapes in Rhode Island when prostitution was accidentally legalized. Whether they represent a true reduction in violence or a shifting of violence from a non-paid victim to a paid one is still debated. But if the goal is to craft a policy that will reduce violent crime and end sexual slavery then these various methods of doing so need to be debated on their practical merits as well as their moral implications.

Resources

Law Street Media: Prostitution: Should It Be Legalized or Criminalized?

BAYSWAN: Initiatives to “End Demand” For Prostitution Harm Women And Undermine Service Programs

GAATW: Moving Beyond Supply and Demand Catchphrases

CAASE: End Demand Illinois 

The Stranger: Sex Workers Write Open Letters To Law Makers Over End Demand Bills

The Honest Courtesan

CATW International: Ending The Demand

Hughes, Hubbard, and Reed: The Economic Duress Doctrine- A U.S. Perspective

Cato Unbound: Perverse Incentives: Sex Work And The Law

The New York Times: A Misguided Moral Crusade

The Washington Post: When Rhode Island Accidentally Legalized Prostitution Rape Decreased Sharply

The Huffington Post: 9 Things You Did Not Know About American Prostitution

The New Zealand’s Prostitute Collective: The Prostitution Reform Act 2003

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Prostitution: Should The “World’s Oldest Profession” Be a Profession? appeared first on Law Street.

My most recent job was working as what I affectionately refer to as a “wage-slave” at a Trader Joe’s. As far as wage-slave jobs go it was a very upbeat environment, I was paid $13 an hour and treated respectfully by all the “mates.” However, on my first day, they explained to me that we are not supposed to talk to our fellow employees about how much we make. It did not seem like a suggestion. Prior to working at Trader Joe’s, I managed a team of psychologists, teachers, service providers, and secretaries at a company that provided services to preschoolers with special needs. The policy there, directly from Human Resources and our bosses, was not to discuss our salaries with each other. I had similar warnings when I worked for Starbucks at the age of 16 and later when I worked for the coffee chain again at the age of 26.

None of these warnings ever stopped me from discussing my wages with my co-workers at any of these jobs but warnings like this do silence many people. Most employers would argue that silence is a good thing. Co-workers discussing their pay with each other could lead to a hostile work environment and pay secrecy protects workers’ privacy. But being able to discuss pay without fear of retaliation is seen as an essential tool to combat discrimination and promote fairness in pay. As Justice Brandeis once said, sunlight is the best disinfectant and allows workers to learn that they are being discriminated against and do something about it.

But who is correct? Should employers be allowed to set policies that prohibit the discussion of pay in the workplace?  Or should employees be allowed to freely discuss what they are paid with each other?

Pay Secrecy vs. Pay Transparency

Discussing pay in the workplace is, actually, already protected by federal law.  There are carve-outs and exceptions but employees are generally protected from retaliation for discussing pay with their co-workers. It’s just that nobody knows about it. This article from NPR gives an explanation of the federal law that gives employees this right and how it works.

The federal law that establishes this protection, the National Labor Relations Act (NLRA), was designed to encourage collective bargaining, which necessitates that employees have the ability to get together and discuss the issues they face at work. But those who think we should be encouraging workplace pay transparency argue that the law does not have enough teeth. One glaring omission is that agricultural workers are not protected. Since many agricultural workers tend to be less educated than office employees they may deserve additional protection, not less.

Policies that try to prohibit employees from discussing their pay are widespread, both in hourly jobs and in salaried positions. According to the Institute For Women’s Policy Research, it is pretty clear that pay secrecy policies are widespread throughout the United States. Some of these are cultural prohibitions and some are in employee handbooks and other written policies. In the private sector, 62 percent of women and 60 percent of men work for a company with pay secrecy policies. For all workers, 51 percent of women and 47 percent of men report that discussion of pay is either discouraged or prohibited.

For an employer, pay secrecy can be an important tool for keeping peace in the workplace. The fear is that pay inequality, even when it is justified, could lead to jealousy between employees when made public. It also is in the employer’s best interest to keep the workplace stable; keeping pay rates secret may help to limit turnover because employees are less motivated to leave if they are not certain they are being underpaid. Secrecy also increases privacy for employees who may not want to discuss their salaries with other co-workers, as that may be something that they want to be kept personal. That is often because talking about money is considered socially taboo. Pay secrecy also lets employers compete for top talent by offering them a financial incentive. Employers might not want to offer their most green workers more money than their existing employees if salary information is publicly available.

Employers who want to be able to keep their pay secret would argue that the practical costs of revealing rates outweigh the potential benefits. It would be difficult to maintain cooperation in the workplace among employees, especially in situations where there was a wide disparity in what similarly situated employees made. Even if those differences were justifiable they would be so unpopular with the employees who received less compensation that it would cause dissension. It would also be difficult, if not impossible, to both publish pay rates for employees and be respectful of the privacy of those who may not want their personal salaries advertised to their co-workers. Finally, there is no proven cause-effect relationship between discrimination by race or sex and pay secrecy. Such discrimination does exist but it is not necessarily because of pay secrecy but rather other social factors at work. Disclosing pay rates would increase acrimony  between companies and their employees.

Case Study: Lilly Ledbetter 

New laws to increase the effect of penalties for violating the NLRA with “gag rules” that keep pay rates secret have many supporters. And laws such as the Paycheck Fairness Act, which was ultimately defeated, seek to go even further. There may be practical concerns with making pay more transparent, but it is ultimately necessary to combat discrimination based on both race and gender. Pay secrecy does not necessarily cause discrimination but it creates a culture in which it is allowed to flourish.

In her book “Grace and Grit: My Fight For Equal Pay and Fairness at Goodyear and Beyond” Lilly Ledbetter gives her account of how she was discriminated against on the basis of her sex. Had she not been discouraged from discussing pay with her fellow employees she would have discovered this injustice much sooner. The culture of maintaining silence was so powerful that she only discovered the discrimination through an anonymous note–despite the fact that both her employer’s insistence on that silence and how it compensated its employees were illegal. You can watch her discuss her experience on CSPAN-2 here.

In the video below Ledbetter discusses her Supreme Court battle over the same issue on the Rachel Maddow Show.

Her story indicates that people on both sides of the pay transparency debate are correct. When Ledbetter learned about her pay it greatly upset her, caused conflict with her employer, and ultimately led to litigation. That litigation was, however, necessary because learning about her pay in comparison to her colleagues revealed a pattern of discrimination. Had she learned about the difference in pay sooner she would have been able to confront the issue immediately. Litigation might actually have been avoided entirely if a transparent culture was in place at Goodyear from the start–she probably would not have accepted a position where she was paid 40 percent less than her similarly situated male colleagues. The company would not have been able to attract female workers and the market would have forced them to change their pay structure before a lawsuit did so. In the long run, transparency would have been more efficient.

Other Potential Benefits To Pay Transparency

Pay transparency may also positively impact morale, rather than destroy it as the conventional wisdom would suggest. When employees feel trusted to make decisions and weigh information intelligently they may be more likely to have a positive view of the company they work for. The main predictor of job satisfaction and whether an employee will seek to leave is based on their perception fairness. According to research done by Payscale, employees who think they are being paid less than they are worth (even in some cases where that is not true) may look to leave while employees who know they are being paid less but feel the reason is legitimate (such as the company being newly formed) are willing to stay. People also may be more eager to apply to work for companies that advertise pay transparency as a policy or core value. If companies want to retain and attract new talent, then keeping pay a secret may not be the best strategy.

Pay transparency would also require that employees take into account factors that justify disparities in pay as well as ensure that such disparities only exist for justifiable reasons. When pay rates are secret, employees may feel that they have something to hide or that the employees are not trusted to make reasoned judgments given the facts–both of which could have a negative impact on worker morale. But when companies make pay transparency their policy it may have an opposite effect–making workers feel like they work for a company that is not keeping secrets about their compensation and that the company values discussion in its culture.

Conclusion

There are benefits to the employer that pay secrecy provides. It can increase privacy and an absence of what many would find to be socially awkward, or even hostile, encounters in the workplace. Making pay rates transparent could lead to problems for employers who would have to change their cultures and deal with the economic and political consequences of sharing this knowledge.

But pay transparency has its benefits as well. Workers cannot hope to speak out against discrimination and fight for their right to equal pay if they are barred from even finding out if they are being wronged in the first place. Pay secrecy effectively keeps them from finding out and, therefore, prevents them from ever being able to do something about it. And to a certain extent, pay secrecy is already against the law in many cases, as most employers are not allowed to discourage or punish open discussion of wages.

Pay secrecy versus pay transparency is ultimately a cost-benefit analysis between the interests of capital and labor. Companies must figure out whether the stability and workplace harmony that pay secrecy can provide is more important than the opportunity for an open dialogue to shine a light on potentially discriminatory practices.

Resources

National Labor Relations Board: National Labor Relations Act

Additional

Institute For Women’s Policy Research: Pay Secrecy and Wage Discrimination

Psychology Today: Pay Secrecy: Do You Want To Know What Your Colleagues Are Paid?

National Bureau of Economic Research: Pay Inequality, Pay Secrecy, and Effort: Theory and Evidence

The Atlantic: When The Boss Says, ‘Don’t Tell Your Coworkers How Much You Get Paid

Goodreads: Grace and Grit: My Fight For Equal Pay and Fairness At Goodyear and Beyond

Fortune: How Pay Transparency Can Keep People From Quitting

Quartz: After Disclosing Employee Salaries, Buffer Was Inundated With Resumes

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Talking About Pay In The Workplace: Is Sunlight The Best Disinfectant? appeared first on Law Street.

To most people, it is a matter of common sense and good policy that governments should not subsidize illegal or immoral activities on the part of their citizens. The belief that governments should not only consider the practical effects of their policy decisions but also the moral implications of those policy choices can be found across the political landscape, often on both sides of a debate. It can also lead to policies that might otherwise have been enacted because of their practical value being dismissed.

One area in which the belief in the importance of government policies not promoting immoral behavior manifests itself is the issue of Needle Exchange Programs (NEPs). These programs, in place in many American cities and around the world, allow intravenous drug users to bring in used syringes and exchange them for clean needles. It keeps users from sharing needles with each other which prevents the spread of HIV, Hepatitis C, and other infectious diseases. It also gives users the tools necessary to get high. Despite the alarming increase in these illnesses, many are unwilling to use federal money to enable drug use and this reluctance has very real consequences. So where do the facts lie, and what effect does moral opposition have on an otherwise effective program?

Background

Every year, 50,000 Americans become infected with HIV. Of these, approximately 11-14 percent are the direct result of intravenous drug use from needle sharing. Hepatitis infections also affect intravenous drug users. An estimated 50 to 80 percent of users will become infected with Hepatitis C within five years of starting intravenous drug use. Based on a study of seven pilot needle exchange programs, the cost savings from preventing an HIV infection was about $20,000–a fraction of the cost of treating an individual who contracts HIV. In light of the growing use of intravenous drugs and the need to prevent the transmission of disease, Congress recently took another look at the largely moral argument that kept the federal government from funding needle exchange programs and decided to lift the ban.

The argument against providing federal funding for NEPs is essentially an ideological and moral one and not necessarily one about the effectiveness of these endeavors. Those who would like to ban funding these exchanges argue that using intravenous drugs is immoral and that providing clean needles to drug users will encourage them to use more drugs. Or, at the very least, sends the message that it is acceptable to use. Therefore federal funds would be encouraging an immoral activity and the programs shouldn’t be funded.

A Perverse Incentive?

In legalese, a “perverse incentive” is a consequence or behavior that was unforeseen by the creators of a policy or law when they enacted it–usually, a negative one that thwarts the purpose the law was intended to serve. Let’s say you have a lot of rats in your city and you want to encourage your citizens to kill rats to get rid of them. One way to incentivize them to do so would be to pay a bounty for each rat tail. Instead of killing rats, you might find that everyone starts farming them to make money. Not exactly what you had in mind, but a perfectly reasonable response to getting paid for rat tails.

Opponents of funding NEPs think that providing clean needles to intravenous drug users will have a similar result. It will lead to the use of more clean needles but would also cause an increase in use overall. Just as the rat-tail bounty lead to additional dead rats, it increased the number of living ones as well.

Advocates of lifting the ban on the funding argue that the evidence shows that intravenous drug use does not increase when clean needles are provided for users. In fact, the evidence shows that users come for the needles but often end up availing themselves of other resources, such as access to rehabilitation and counseling. To those advocating that the ban remain lifted the fact that providing clean needles may be tacit consent (more legalese) for using drugs shouldn’t be relevant. What matters, and what should matter to policymakers, is that the programs work.

Morals and Numbers

The former ban on federal funding for Needle Exchange Programs has been in effect since 1988, with a brief respite in the 2010-11 budget. The rationale for this ban was largely due to some lawmakers’ unwillingness–on this issue, it was typically Republican lawmakers–to promote drug use. Although there was clearly a need to take steps to prevent the spread of HIV/AIDS and other blood-born illnesses, lawmakers were unwilling to provide the funding for clean needles. Essentially arguing that providing that funding amounted to facilitating drug use, and that these programs may even encourage addicts to use more because of increased access to clean needles.

Federal funds could still be used to pay for other efforts in the fight against the spread of HIV/AIDS and hepatitis, such as educating intravenous drug users about the importance of clean needles and providing counseling and rehabilitation services. But clean needles, or even giving out bleach to clean the needles, wasn’t allowed. Nor were NEPs allowed to use federal funds to pay for administrative support for these programs, limiting them entirely to state and local funds.

Although Congress lifted the ban, federal funds still cannot be used to directly purchase the needles themselves. The change simply allows for the use of federal money to pay for everything but the needles involved in these programs. For some advocates of NEPs, such as Daniel Raymond of the Harm Reduction Coalition, it is a compromise that they are happy to make. In his recent interview with NPR, Raymond outlines the rationale for his support for lifting the funding ban.

Those in opposition to federal funding make an argument that resonates with our cultural sense of personal responsibility and our unwillingness to help make bad behavior easier. If it really is the case that an addict who has access to clean needles will continue or even increase their drug use, opponents argue that the federal government should not be a party to it. The goal should be to combat drug use and its effects and lawmakers see direct funding for NEPs as counterintuitive–giving an addict a needle so that they can more safely use while telling them they shouldn’t be using in the first place. To those opposing funding, an increase in drug use isn’t even a perverse incentive but a very foreseeable consequence.

A Closer Look 

Yet the numbers don’t support this conclusion. In fact, those users who go to a needle exchange program often also end up entering into a rehabilitation program. According to the ACLU, they are five times more likely than a user who never sought out an NEP to do so.

The reduction in rates of HIV infections can also be profound. In 2008, the ban on local funding for NEPs in Washington, D.C. was lifted. By 2010, the rate of new HIV infections decreased by 60 percent. There may  be a perverse incentive at work here, but not the one you would think. Addicts want clean needles if they are going to use and that draws them to the NEP. But many of them also want to not need the clean needles in the first place. Once their foot is in the door, drug users are met with the social services that can help them rehabilitate. By making drug use safer, the programs are also, ultimately, making drug use less likely.

The Profit Motive

There is also a second perverse incentive that leads many to oppose funding for needle exchange programs. At most NEPs there is no limit to how many dirty needles you can turn in for clean ones. Therefore enterprising individuals can collect dirty needles and get clean ones, then turn around and sell those clean needles to users, essentially making a profit off of the federal government’s support for clean needles. For those morally opposed to providing the clean needles in the first place, this is an added reason to reinstitute the ban. Now, instead of just giving the needles away, the federal government is creating a business for clean needle sales.

To opponents of the program, this second perverse incentive may be even worse than the first. There is a visceral discomfort with the idea that drug dealers might be benefitting financially from a federally funded program.

But this profit motive may, in fact, be a benefit for drug users (and taxpayers) as well as increase the effectiveness of the NEPs in general. Essentially, you’re taking the exchange program and making it mobile. Instead of needing to plan a trip to the NEP to get the tools necessary to use, an addict can go to an individual supplier, who may be more local. Or a drug dealer, who users will inevitably encounter, now has an ancillary business of providing clean needles.

The proximity of a clean needle to an addict when they need to use is probably the deciding factor in whether they use a clean needle or a dirty one. This makes the clean needle option much easier to choose and it gives the needle supplier/drug dealer an incentive to promote clean needles: they want to sell more needles. One could argue it also gives them an incentive to try to sell more drugs, which it certainly does. Yet, the incentive to sell as much as possible exists anyway. Dirty needles do not diminish that profit motive and they don’t decrease the demand. If an addict is willing to pay a small premium for a clean needle there is an economic incentive for dealers to have clean needles to sell. By tying an economic incentive to drug dealers, you end up promoting the use of clean needles.

Opponents would also point out that if users get needles from drug dealers and not from the NEPs that actually reduces the main ancillary benefit of the program–that addicts get the other social services in addition to the clean needles when they show up. But advocates for these programs would argue that the solution to this problem might be to take the economic incentive model and tie it to those social services as well. Essentially mimicking the drug dealers actions by making NEPs more mobile. In fact, many NEPs are in buses and vans, perhaps for this reason.

For many, this argument does not remove the opposition to letting drug dealers or addicts profit financially from these programs. Nor does the effectiveness of these programs make up for the essential problem addicts are being supplied with the tools they need to use, which is the very thing the government wants to prevent. Even if the program is effective that doesn’t make it morally right from everyone’s perspective; the ends-justifies-the-means argument does not always hold water.

Conclusion

There is an epidemic of intravenous drug use in the United States, and around the world, in addition to a concurrent epidemic of HIV/AIDS, hepatitis, and other illnesses that are transmitted through the use of dirty needles. You would be hard-pressed to find a community or a family in America today that has not been personally impacted by a friend or a loved one who is struggling with addiction.

Opponents of federally funding NEPs would argue that the federal government should not make it easier for addicts to use. Instead of devoting our resources to giving drug users clean needles, which gives them the ability to more safely use and even profit off federal funding, the government should be devoting all of the resources it has to other methods of combating intravenous drug use. There are ways to promote rehabilitation programs and other forms of help that don’t involve also promoting “safe” drug use.

But advocates of lifting the ban argue that while other services for drug users are critically important NEPs should be supported even if initially they seem to encourage drug use, because in the long run they decrease the transmission of disease and intravenous drug use through the social services they offer. The fact that users may ultimately profit from the sale of clean needles is not a reason to defund these programs if they are still working. If the program is reducing the spread of disease and decreasing drug use, then it should be funded.

The division of opinion on this issue is centered more on the conflict between ideologies than on the effectiveness of NEPs. The programs have been proven to be successful in combating the spread of disease as intended and the evidence does not show an increase in drug use where these programs are available. Ultimately, the question is which should matter more: the moral message that providing needles sends, or the effectiveness of the program itself.

Resources

Primary

University of Texas at Austin, Needle Exchange Program

Additional

Financial Transparency, Farming For Rats: Perverse Incentives and Illicit Financial Flows

New York Times, Surge In Cases of HIV Tests U.S. Policy on Needle Exchanges

NPR, Congress Ends Ban On Federal Funding For Needle Exchange Programs

NPR, Needle Exchange Program Creates Black Market In Clean Syringes

ACLU, Needle Exchange Programs Promote Public Safety

TIME, Clean Needles Saved My Life

The Atlantic, The War On Drug Users : Are Syringe Exchanges Immoral?

University of California San Francisco, Does HIV Needle Exchange Work? 

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Perverse Incentives: Are Needle Exchanges Good Policy? appeared first on Law Street.