Citizen by birth: Part 3

Rep. Steve King (IA-4) introduced H.R. 140, the Birthright Citizenship Act of 2017 on January 3, 2017.  He has attracted 17 co-sponsors, so far.  This bill, if passed, and enacted would only allow children born in the United States a citizen if they are born to at least one parent who is a citizen or national of the United States, a lawful permanent resident, or alien performing active service in the armed force.  While President Donald Trump has talked about ending birthright citizenship, it is by no guarantee that this would pass the House much less make it through the Senate.  Ultimately, the legislative filibuster is likely to be nuked, but I don’t believe this would be the legislation that causes the filibuster to die.

The discussion of the constitutionality of revoking birthright citizenship is largely predicated on the Supreme Court case of Wong Kim Ark v. United States.

Wong Kim Ark

A lot of this section comes from Charting the Future by John Semonche.  Wong Kim Ark was born in 1873 in San Francisco to Chinese parents.  The family continued to live there until 1890.  At that point, he and his parents left for China.  Wong Kim Ark returned to the United States in 1890 and was admitted on the claim that he was a natural born citizen of the United States.  He went to and back from China in 1891 and was barred from entry upon his return.

The Chinese Exclusion Act was signed into law by President Chester Arthur in May of 1882.  This was the first major piece of immigration legislation that was passed and signed to halt immigration.  Prior to this law, there were not any major immigration laws.  Some on the right even admit that there was not any immigration laws prior to this legislation.  The law would effectively bar immigration from China for 10 years and prevent Chinese from being citizen.  It was extended through the Geary Act of 1892 for another 10 years and was made permanent in 1902.

Under the Chinese Exclusion Act, Wong Kim Ark was barred from entry. This case eventually found its way to the Supreme Court.  Justice Horace Gray became the justice to save the case for Wong Kim Ark.  Justice Gray began to look at the claim of citizenship against the wording of the first section of the Fourteenth Amendment.  Then he began to look at what the rule of citizenship was prior to the enactment of the Fourteenth Amendment.  He saw in the Constitution the phrase natural born citizen without any sort of definition of what it actually meant.  Justice Gray began to look for the examples of common law.

After a while, he was able to locate a principle where the birth within the jurisdiction of the king conferred nationality, with only children born to foreign diplomats and to enemy aliens being excepted.  Working through that, Justice Gray stated that this rule was in force in all of the British colonies, he argued that at the time of the Declaration of Independence and the ratification of the Constitution, that this principle was continuing at that point.

Justice Gray did face a dilemma, though.  The purpose of the Amendment, according to some at the time, was that it was largely focused on race and granting citizenship to freed slaves.  This is, still, part of the argument today.  Justice Gray noted that all members of the Supreme Court in 1873, clearly recognized that the Fourteenth Amendment related to place and jurisdiction of birth and not to race or color.  He went further citing the opinions of Attorneys General since the time of the ratification of the Fourteenth Amendment that consistently find that birth within the country confers citizenship.

Justice Gray still had to deal with the pesky issue of being able to stop natualization based on race, as the Supreme Court found that to be a constitutional act of Congress, and being to stop citizenship.  Justice Gray wrote in his opinion that Congress could confer citizenship but not take it away.  If they were allowed to take citizenship away, he wrote, “it would be i nthe power of Congress, at any time, by striking negros out of the naturalization laws, and limiting those laws, as they were formerly limited, to white persons only, to defeat the main purpose of the Constitutional Amendment.”


Citizen by birth: Part 2

Birthright citizenship prior to the 14th Amendment

Strangely enough, the United States Constitution is remarkably silent on the issue of who is considered a citizen in the United States.  It references citizenship in defining who is eligible to run for the House of Representatives, the Senate, and President of the United States.  Our founding document did give the power to Congress to determine naturalization.  While the constitution is silent on the issue of what makes a person a citizen, the courts routinely were able to use English common law to set a precedent for jus soli citizenship.  Alexandra Wyatt wrote in her report for the Congressional Research Service titled “Birthright Citizenship and Children Born in the United States to Alien Parents: An Overview of the Legal Debate”, noted that the Supreme Court in Smith v. Alabama opined “[t]he interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, are to be read in the light of its history.”   Wyatt found that in Inglis v. Sailor’s Snug Harbor, Justice Story wrote in a dissent (on other grounds) that “nothing is better settled at the common law than the doctrine that the children even of aliens born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth.”  But these are not the best examples for a number of reasons to say that the case is settled.  The New York Court case of Lynch v. Clarke was probably a better example.

Julia Lynch was born to Irish aliens during a “temporary sojourn” in 1819.  She, with her parents, departed to their native country and lived there continuously from then on.  The court was asked to rule on the claim of Julia Lynch, if she was a citizen, because if she was, she was set to inherit real estate.  Her father did not state any intention of becoming a citizen of the United States and even though he had a daughter while in the United States, they had no real intention of staying.  They moved back to Ireland. The New York Court held that Julia Lynch was a citizen of the United States.  In the opinion, the justice wrote “the right of citizenship, as distinguished from alienage, is a national right or condition. It pertains to the confederated sovereignty, the United States; and not to the individual states…the policy and the legislation of the American Colonies, from their earliest times until the Revolution was adapted to foster immigration, and to bestow upon foreigners all the rights of natural born subjects…the uniform course was to extend, not to abridge, the right of citizenship.”  The justice continued until ultimately concluding “I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United Stats, whatever were the situation of his parents, is a natural born citizen.”

In one of the most infamous rulings in the United States Supreme Court’s history, the Taney court, in Dred Scott opined that the class of citizenship could not be given to descendants of slaves and to people of African descent, in general.  The Dred Scott case is one of the worst decisions that the Supreme Court has issued and is rarely cited as any precedent outside of hiding in Shelby County v. Holder and by Trump confidante and anti-birthright citizenship crusader Kris Kobach.  After the Civil War, which more or less repudiated the decision in Dred Scott, it was still up to Congress to determine who could be naturalized and become a citizen.



Citizen by birth: Part 1


Citizenship by birth

If you are born in the United States, you are a citizen of the country, regardless of the citizenship status of your parents.  This is known as jus soli (“right of soil).  Advocates for ending birthright citizenship talk about moving the United States to the same doctrine as many of the other countries in the world to change citizenship based on the status of your parents, this is known as jus sanguinis (“right of blood”).  This is why when an undocumented immigrant has a child here, the child is a citizen.  This is the legal doctrine that creates the idea and derogatory term as “anchor baby.”  According to the Pew Hispanic Center, about 340,000 babies in 2008 were born to those here illegally.

More recently, in the last few years, at least, there has been increased scrutiny on maternity hotels in the United States.  This is where immigrants from other countries will come to the United States for the expressed purpose of having their child so that the child can gain citizenship in the United States.  Even those opposed to ending birthright citizenship note how this causes an increased difficulty for mothers and babies because the babies might not be properly cared for.

Some seemingly moderate Republicans have a view on ending birthright citizenship, such as Judge Richard Posner and Senator Lindsey Graham or Rand Paul.  All think that it would be better practice to end this immigration practice in an effort to curb immigration.  But these views have mainly been on the fringes of the Republican Party and outside the mainstream of the Democratic Party, as well.

There are many reasonns, looking back, where we should have known that the Republican Party, writ large, would captulate to their party’s nominee, whoeveer it was.  The one that probably stood out the most at the time, that was undeercovered was when Donald Trump talked about ending birthright citizenship.  May of the Republicans who were running decided to try to appease the leader in the polls istead of standing up for what they previously thought was right.

The most egregious example of one of the candidates bending over backwards waas former Louisiana Governor Bobby Jindal.  Jindal claimed his citizenship through his parents, almost explicitly through the idea of birthright citizenship.  Jindal’s parents were not citizens but he was able to claim citizenship because of the fact that he was born in the United States.

Chris Christie and Scott Walker also came out in favor of ending birthright citizenship to gain favor with the Republican base that they needed to continue in their presidential runs.

Some of the Republican candidates had previous issues with the idea of birthright citizenship.  This included the South Carolina Senator, Lindsey Graham, who once said that immigrants could “drop their babies and leave.”.  This also included Kentucky Senator Rand Paul.  Both of these Senators sponsored legislation ending birthright citizenship in the Senate.

The principled Conservative, John Kasich, previously supported ending birthright citizenship but ended up denouncing that end in his presidential run, this time around.  He talked about reforming the immigration system that we have, including a path to citizenship for many of the undocumented immigrants, out there.

And some tried to hold strong to their values such as former Florida Governor, Jeb Bush and Florida Senator, Marco Rubio.

I’m not trying to pick on Republicans with this idea.  Senator Harry Reid once offered up legislation to end birthright citizenship but over the course of the last 20 years, has moved from immigration hawk to an immigration reform advocate.

Ending birthright citizenship is not really an idea that can be laughed off, at this point.  Republicans hold a trifecta in the federal government and will hold a majority on the Supreme Court once Trump puts his nomination through.  Representative Steve King of Iowa will likely push his legislation of ending birthright citizenship the first day the House is in session, like he does seemingly every session, now.

The ending of birthright citizenship is a direct assault on the 14th Amendment of our Constitution that was passed at the end of the Civil War.

Because of this and because of the possibly high importance on this issue from both Congressional Republicans and the President elect, what I want to do is look at the history of birthright citizenship and why I think it is so important and ultimately talk about why the attacks on it are misguided and unfounded.




5 things to watch in every state: Indiana

Oh, look, here’s a state that doesn’t really like extremism in a statewide manner, at least in Presidential election years, yet, somehow had their Governor be the Vice President to Donald Trump.

  1. U.S. Senate election: I feel dirty talking about this for too long.  I really don’t like Evan Bayh.  But I am a progressive and Bayh, at least will support a Democratic Senate Majority Leader, will likely be a vote for ending the filibuster, and will be a yes vote for most of the Democratic agenda (although he’ll lecture us all about how we’re doing it wrong, while doing the same things that he is criticizing other Democrats of doing).  But, this seat is seeming to be more winnable all the time.  That is important if Democrats are trying to take back the Senate.  Flipping Indiana will give Indiana two Democratic Senators.  Neither of which are terribly progressive.  But gives more credence to the idea of running moderates in more conservative seat to be able to win these seats. At any rate, I feel dirty rooting for Bayh because he will be touted in 2024, again, as a potential Vice President pick.
  2. Indiana Gubernatorial election: Before Mike Pence was selected by the Trump campaign to be his Vice Presidential nominee, there was speculation that Pence was going to be a private citizen in January.  Pence’s poll numbers in Indiana were not spectacular, by any measure.  The gubernatorial election was going to be a rematch between Pence and Democrat and mustache enthusiast John Gregg.  Gregg had only lost by 75,000 votes in 2012 to Pence.  After Pence was chosen as the Vice President nominee, Gregg got a different challenge in Indiana Lieutenant Governor Eric Holcomb stepping up as the Republican nominee.  In the polls in October of 2016, Gregg has been leading Holcomb.  It will be interesting how the elections hake out in 2016 for the Governor’s mansion, if only because we need more facial hair in politics.
  3. U.S. House of Representatives, Indiana’s 2nd Congressional District: In 2014, when I was highlighting races to watch, I found this Congressional District to be one of the ones that I thought could be had for the Democrats.  Then Ebola and the child migrant crisis happened and it never materialized. Some Democratic operatives are saying that the 9th Congressional District is the one that can be flipped more easily.  But I’m stubborn so I want to follow this race to the bitter end.  Jackie Walorksi was elected in 2012 by 4,000 votes over Democrat Brendan Mullen.  She won re-election in 2014 by 30,000 votes. Now either, it was a wave year or Walorksi had an incumbency advantage of 28,000 votes.  I’m not too sure that the incumbency advantage is really that large.  so I think it could be a lot closer in a Presidential election year, even if I think Joe Bock is a much stronger candidate than Lynn coleman.  And to be fair to the 9th district, Shelli Yoder is a much better candidate than Coleman.
  4. Indiana State Senate, District 30: Republican incumbent Scott Schneider won re-election in this district in 2012 by 900 votes.  He was almost the victim of a Libertarian Party spoiler candidate in F.C. Peterson who won 1,8880 votes in 2012.  Schneider is running for re-election against a new Democratic challenger, Pamela Hickman.  If Indiana has a chance of flipping from Republican to Democratic (which it definitely does, even if I don’t have the Presidential election listed here as one to watch), it’s possible that 2012 is a better year for Democrats than 2016.  If you add that in with a new found distaste for Pence and a Libertarian Presidential candidate who is running slightly stronger than in 2012, you have a nice little storm for Schneider to lose.
  5. Indiana House of Representatives, District 12: Surprisingly, there are a lot of elections in Indiana that I think are interesting and worth keeping a closer eye on.  This follows the traditional playbook of elections that I like to follow this cycle.  In 2012, a Democratic incumbent won re-election to their seat by a fair amount (in this case about 2,000 votes).  Then they lost in 2014 by a fairly small margin (421).  Then a Democrat runs in the district in 2016.  This time the Democrat is Maria Candelaria Reardon who is trying to win her seat back that she lost in 2014 to Bill Fine (whom she defeated in 2012).  Ahh.  It’s so delicious.
  6. Indiana House of Representatives, District 19: We have the same playbook as District 12.  Shelli VanDenburgh won re-election in 2012 by about 3,000 votes.  She lost in 2014 to Republican Julie Olthoff by 300 votes.  She is challenging her to a rematch in 2016.  This time, she has not only the Presidential election coatttails potentially helping her but also a Libertarian spoiler in Evan Demare to help her win back her seat.

The death tax

Every 2-4 years, Republican lawmakers and Conservative Presidential candidates talk incessantly about the need for tax reform.  The tax reform that they are referring to also includes the call for a repeal of the estate tax, the so-called death tax. The way that the tax is talked about, you would assume that everyone has to pay the tax.  That once you or a loved one dies, there is a considerable amount of tax on the property that is left and then it is taxed again once inherited.

As you probably know, either due to my writing style or the fact that you’ve rad up on the issue, this view is incorrect. The estate tax is only levied on those above a certain threshold for their estate’s value.  The value is $5.45 million per person or $10.9 million per married couple.  Because it’s such a high threshold, there is not that many people affected by the tax.  According to the Joint Committee on Taxation, there were 2.6 million deaths in the United States in 2013 and there were 4,700 estate tax returns filed.  So the percentage of those affected were 0.2%.  Or 2 out of every 1,000 deaths.  This is partially due to the fact that the exemption is so high, now.  At its peak, the Joint Committee on Taxation noted that 6% of all deaths were affected by the estate tax.

The Joint Committee on Taxation gives a brief history on estate or inheritiance taxes which I hope to paraphrase:

Inheritance or estate taxes have been around primarily to finance debts from war or the threat of war.  From 1797 to 1802, the stamp tax was enacted on the inventories of dead people.  After the repeal of the stamp tax, there was not a tax on inheritance until the Civil War.  From 1862 to 1870, there was an inheritance tax to help pay for the Civil War.  There was another estate tax imposed in 1898 to finance the Spanish American War until 1902 when it was repealed. There was not an estate tax again until World War I in 1916.  It remained in effect.  The top rate was increased during the Great Depression when revenues for the government were most needed. The estate tax remained in effect until 2001 when there was legislation passed to reduce the estate tax and eventually eliminate. In 2012, there was another law enacted to permanently place the estate tax in with an increase indexed for inflation.  If you want to read more about the history of the estate tax, you can read the full report from the Joint Committee on Taxation.  It’s fairly interesting.

“Further, the House considered, HR 1105, the Death Tax Repeal Act of 2015.  As you may know, I have long supported the full and permanent repeal of the estate tax because I do not believe that death should be a taxable event, and because it acts as a direct, job-killing tax on family-owned farms and small businesses, which have historically created countless good jobs in Wisconsin and across the country over the last decade.  For these reasons, I was pleased to support this legislation, which passed in a bipartisan fashion by a vote of 240-179.  The bill was received in the Senate on April 20, 2015, and I look forward to Senate action on this important piece of legislation.” – Paul Ryan 

The most consistent attack on the estate tax is that it unfairly attacks family farms and small businesses.  The non-partisan (despite what Mitt Romney said in 2012) Tax Policy Center estimates that only 30 small farms or businesses will pay the estate tax for 2015.  Their definition was one that has more than half of its value from a farm or business and is valued at less than $5 million.  Their study in 2013 found that on average, these small businesses or farms would owe less than 5% of their total value in the estate tax.   The Congressional Budget Office (CBO) notes in their report that “certain types of businesses can spread their tax payments over 15 years in some circumstances. For farmers, a special method of calculating the value of a family farm can lower the amount of estate tax owed.”  They also note that the vast majority of estates, including farms and small businesses can afford the estate tax bill with liquid assets.

The Center on Budget Policy and Priorities (CBPP) released a policy paper on the potential effect of repealing the estate tax.  Repealing the estate tax would hurt problems that both liberals and conservatives believe are very important.  First, it would increase the deficit of the United States.  Eliminating the estate tax would cost nearly $270 billion in additional revenues from from 2016 to 2025 according to the Joint Committee on Taxation.  Once you count the interest, this will add nearly $320 billion.  This may not seem like very much when you consider the totality of the US budget but it’s significantly more than what the US Government will spend on the Environmental Protection Agency, the Centers for Disease Control, and the Food and Drug Administration (and is more than if you combine the three according to the CBPP)  This also hurts other potential revenue.  The estate tax was mainly created to tax money that otherwise would not have been taxed.  32% of the value of estates worth $5 million to $10 million to about 55% of the value of estates of those worth more than $100 million are unrealized capital gains. Capital gains are taxed only when they are realized so if the gains are held onto until death, they are never taxed.  The repeal of the estate tax would make income inequality worse.  Inheritance, which is certainly concentrated at the top “1%”, accounts for about 40% of all household wealth.  Reducing the amount of money in inheritance through the estate tax actually encourages the wealthiest offspring to work instead of relying on their inheritance contributing more to the economy.


The Earned Income Tax Credit (EITC)

The Earned Income Tax Credit (EITC) was enacted by President Gerald Ford’s administration in 1975.   The Tax Policy Center explains that it is a federal tax credit that “equals a fixed percentage of earnings from the first dollar of earnings until the credit reaches its maximum.  The maximum credit is paid until earnings reach a specified level, after which it declines with each additional dollar of income until no credit is available.”   The federal EITC is fully refundable.  This means that if the credit exceeds the family’s tax liability, the family still receives the full credit in the form of a tax refund.  The EITC is only awarded if you have an income.  What’s more is that the EITC’s credit grows with each additional dollar of income, this creates an incentive for people to increase their income either by increasing their hours, leaving welfare and looking for work, and looking for higher paying jobs.  The Center on Budget and Policy Priorities (CBPP) explain the eligibility requirements.  For filing taxes for the 2015 calendar year, “working families with children that have annual incomes below about $39,000 to $53,300 (depending on marital status and the number of dependent children) may be eligible for the federal EITC.”  To be eligible for the EITC if you do not have children, you have to be in the ages of 25-64 and also have an income below about $14,800 ($20,300 for a married couple). You can receive a small EITC.  In 2013, over 27 million working families and individuals received the EITC.  97% of benefits from the EITC go to families with children.  According to the Tax Policy Center, almost all benefits of this tax credit go to families in the bottom three quintiles of income distribution.  The U.S. Census Bureau found that the EITC lifted 6.2 million people out of poverty in 2013.  This included 3.2 million children.

How does it work?  The phase in rate is the money where you earn a portion of your income to increase the value of the EITC.  So let’s say the phase-in rate for a married couple with one child is 34%, for every dollar that is earned by the couple, the EITC is increased by 34 cents until you reach the income threshold where the phase-in ends and the EITC holds steady. It includes every dollar that you earn.  The phase-in for a married couple with one child ends at $9,880 so at that point, your EITC would be $3,359.  If you make between $9,880 and $23,630, your EITC would be $3,359.  Then you slowly lose that money from your EITC depending on how much you earn until it is reduced by zero.  The phaseout rate is 15.98% for a married couple with one child.  All of these numbers were based in 2015.   If your EITC is larger than your tax liability, you receive it back from the federal government in a refund.  In 2013, the average EITC was $3074 for a family with children compared to $281 for a family without children.  That $3074 is equivalent to boosting wages by $256/month.

More benefits of the EITC

The EITC and relative expansions of it have had tremendous effects on unemployment and reducing welfare and other cash assistance programs.  Because the EITC essentially requires you to work to be able to claim the credit, it encourages people to transition from welfare to work.   In Examining the Effect of the Earned Income Tax Credit on the Labor Market Participation of Families on Welfare, the authors V. Joseph Hotz, Charles H. Mullin, and John Karl Scholz found that the EITC had a “substantial, positive effect on the employment of families who have uses or will use welfare.”  In a paper by Jeffrey Grogger, titled Welfare Transitions in the 1990s: The Economy, Welfare Policy, and the EITC, he finds that the EITC had the most signficant effects in reducing welfare caseloads during the 1990s.  He writes the EITC expansions “reduced welfare participation by 6.5%,relative to its 1993 peak.  Thus they accounted for over 10% of the 1993-1999 decline.”  Hotz, Mullin, and Scholz write that “for those out of the labor market, the EITC provides an unambiguous, positive incentive to work.”  Similarly, they found EITC expansion “accounted for 11.8% of the average increase in employment” over 1991 – 2000.

By far, the biggest recipients of the EITC are single mothers.  They are the ones most likely to qualify because of their low income earnings and qualifying children.  From March of 1990 and March of 2000, Hotz, Mullin, and Scholz wrote that employment rates of single mothers rose to 73.9% from 55.2%.  Not all of this can be attributed to the expansions of the EITC but as we’ve seen the increase encourages people to work.  The CBPP analysis shows

Economic studies controlling for other policy and economic changes during this period also found that the most significant gains in employment attributable to the EITC occurred among mothers with young children and mothers with low education…

Other research has found that EITC expansions between 1984 and 1996 accounted for more than half of the large increase in employment among single mothers during that period…

The EITC expansions of the 1990s “appear to be the most important single factor in explaining why female family heads increased their employment over 1993-1999,” University of Chicago economist Jeffrey Grogger has concluded.

The recession in recent years has hurt a number of workers and decreased wages.  The National Employment Law Project found in their analysis that “mid-wage jobs made up  60% of the jobs lost during the recession, they made up only 22% of the job gained during the recovery…lower-wage jobs, in contrast, represented 21% of the jobs lost during the recession but 58% of jobs gained during the recovery.”  The money refunded through the EITC help low-wage workers meet temporary needs, able to afford college, or pay other bills.  When I received my portion of the EITC, I used a majority of my money to afford daycare for my daughter for a substantial part of the year. The majority of those who receive the EITC only do so for a year or two at a time.  61% of those who received the EITC between 1989 and 2006 did so for only a year or two at a time.

Childless workers, the minimum wage, and strengthening the EITC

In order to help reduce income inequality, we need to strengthen the EITC.  Conservative economists including economic adviser to Donald Trump, Stephen Moore support raising the earned income tax credit.  Beyond that, conservative think tanks the American Enterprise Institute and American Action Forum also support strengthening the EITC.  The difference is that they support strengthening the EITC in a vacuum instead of tying it to strengthening the minimum wage, as well.  The CBPP argues that both the minimum wage and the EITC should be strengthened because “they function best when both are strong because each helps fill gaps that the other can’t fully address on its own, and neither is sufficient by itself.”

The current phase in for the maximum amount for the EITC for a single filer is $6,580 with a the phase out beginning at $8,240.  With the current federal minimum wage at $7.25/hour that is roughly the equivalent of 17-21 hours per week to earn the maximum amount of the EITC.  The maximum amount from the federal EITC is $503.  The EITC return begins to decline at that point.  A single filer who works full-time in a minimum wage position would earn $15,080/year and would not qualify for the EITC.  The maximum amount of hours to qualify for any portion of the EITC is $14,819 which would be just over 39 hours per week.  The credit’s value would be $1.  That hourly estimate is based off the federal minimum wage instead of any increases in the minimum wage at the state level.

This may not seem like a giant deal, although, we do have data on who earns the minimum wage or close to it so to see how many people this might affect.  The Congressional Budget Office (CBO) found that only 26.1% of low-wage earners are parents.  The Department of Labor found that 50.6% of those who are earning $7.25/hour or less are aged 16-24.  The Economic Policy Institute (EPI) found that 36.5% of workers earning $11.10 per hour or less were aged 20-29 while 73.7% of all those earning $11.10 per hour or less were aged 20-54.  The guidelines for childless single adults are that you have to be 25 or older and you have to work essentially 17-21 hours per week at $7.25/hour.  EPI found that 14.2% of workers who earn $11.50 or less work fewer than 20 hours/week.  Also, according to them, 54% work full time, meaning 35 or more hours per week.  A minimum wage increase without an accompanying increase in the EITC would harm workers and reduce their potential income.

While we are at the point where we should be strengthening the EITC.  The easiest solution is to adjust the ages that people are eligible to receive the EITC if they are childless. The typical response has been to expand the age requirements to 21 instead of 25 and expand it from 65 to 67.  My fear with expanding it that much is just that there is still a gap of those who are covered.  I would rather have it expanded to those at 18 (which we have generally decided is the age to become an adult) all the way up to 70.  But we must also go further, increasing phase in ending income threshold and increasing when the phase out income threshold begins would also wonders to help reducing poverty.















Paid family leave

One of the ways that we can reduce income inequality would be to provide for paid family and medical leave. The Family and Medical Leave Act (FMLA) which was passed in 1993 provides up to 12 weeks of leave.  This law only applies to companies with more than 50 employees and doesn’t actually give employees a chance to recover their wages.  Moreover, only about 60% of workers are covered by FMLA establishments.   It is up to the employers if they will provide paid leave to their employees.  According to the Department of Labor, published in 2013, in the employee benefits survey only 12% of workers have access to paid family leave.

A national paid leave law would provide employees to earn a portion of their pay while they take time to address a serious health condition, care for a family member with a serious health condition, and care for a newborn, newly adopted child or newly-placed foster child. According to National Partnership for Women and Families, a serious health condition is one that requires either inpatient care or continuing treatment by a health care provider.  Continuing with National Partnership for Women and Families, usually payment for these types of programs are either by join employer-employee contributions or solely by employee contributions and the funds are paid to a special insurance system where funds are disbursed. As Cohn notes in The New Republic, the paid family leave is typically set up in a similar fashion to unemployment or disability insurance where the money is taken out via a payroll tax and is then withdrawn when you need it.

California passed a paid family leave law in 2004.  The law is similar to other government social insurance funds, such as disability or unemployment and would provide up to six weeks of paid leave at up to 55% of an employee’s earnings.  While it is a good program, I did not take advantage of it while I was in California as even 55% of my wages while I was there when my daughter was born would not have been enough to support my family.  In a survey conducted by the Center for Economic Policy and Research, 89% of businesses said they felt the law either had a positive or no noticeable effect.  Further, they found that 87% of employers reported that the state’s paid family leave program resulted in no cost increases.  The researchers wrote “fears expressed by opponents of the program that PFL would create a heavy burden on the state’s employers even report reduction in costs and improvements in productivity or profitability.”  In a report from the White House Counsel of Economic Advisers, they found that 90% of California employers reported no noticeable or a positive effect on on profitability, turnover, and morale.

Jonathan Cohn writes in The New Republic that businesses actually like to offer paid family leave and it makes more sense to begin to offer it contrary to what some conservative politicians argue.   Google announced that it was extending paid leave for its employees by several weeks.  The White House Counsel of Economic Advisers in their report on paid leave found that 2/3 of human resource managers called family-supportive policies including flexible schedules as the single most important factor in attracting and retaining employees.  And in that same report 90% of respondent employers characterized their family-friendly policies as cost-effective.  In a report written by Linda Houser and Thomas Vartanian titled Pay Matters: The Positive Economic Impacts of Paid Family Leave for Families, Businesses and the Public they studied the economic impacts of paid leave compared to the effects of unpaid leave or no leave.  Houser and Vartanian had a number of interesting findings in their paper.  Women who report taking paid leave are more likely to be working 9 to 12 months after a child’s birth than are those who report taking no leave at all.

The reason that it makes more business sense is that, as Houser and Vartanian find, employees have stronger labor force attachment after returning from leave.  Betsey Stevenson, a member of the president’s Council of Economic Advisers, suggested “women who are offered maternity leave are more likely to return to the same firm, and many women who would not have otherwise returned to work re-enter the labor force within a year.”  As Cohn notes, numerous studies have shown that offering paid leave tends to improve retention.  This is very important, in the same report from the White House Council of Economic advisers found that the median cost of replacing an employee was 21% of that employee’s annual salary.  What’s more is that an employee absenteeism due to work-family responsibilities cost employers about $500 – $2,000 per employee per year.

The reason that there is a need to be able to provide this as a government benefit instead of relying on the private sector is that corporations are not reacting quick enough and those that would benefit the most from these policies are not offered.  As we see with the statistics from the Department of Labor, overwhelmingly, the poorest do not have access to paid family leave:

Characteristics Family leave  
  Paid Unpaid
Worker characteristics    
Management, professional, and related 20 92
    Management, business, and financial 25 92
    Professional and related 17 92
Service 7 80
    Protective service 14 90
Natural resources, construction, and maintenance 8 81
    Construction, extraction, farming, fishing, and 7 80
    Installation, maintenance, and repair 9 83
Production, transportation, and material moving 7 86
    Production 8 88
    Transportation and material moving 6 84
Full time 15 90
Part time 5 77
Average wage within the following categories3:    
    Lowest 25 percent 5 78
        Lowest 10 percent 4 75
    Second 25 percent 11 87
    Third 25 percent 15 91
    Highest 25 percent 21 93
        Highest 10 percent 22 94

It makes financial sense for employees to support paid family leave. Heather Boushey, the executive director and chief economist at the Washington Center for Equitable Growth writes that women lose an estimated $274,044 and men $233,716 in lifetime wages and social security benefits when they have to leave the labor force early due to care giving responsibilities. Women in the workforce have not changed in a significant manner since the mid 1990s.  In their paper Female Labor Supply: Why is the US Falling Behind, Francine D. Blau and Lawrence M. Kahn write “by giving workers the right to thei job back after taking the leave, [paid leave] raises the job prospects of those who have left the labor force after the birth of a child.”  Houser and Vartanian found in their paper that women who report leaves of 30 or more days are 54% more likely to report wage increases in the year following the child’s birth than are women who take no leave at all.  Perhaps the idea that those returning from leave have a labor force attachment have some merit.  By shifting the burden to provide this leave away from businesses and place it squarely with the government, there will be new opportunities for small businesses who cannot afford to currently provide paid family leave.  Smaller businesses would not have to compete with larger firms for the same talent pool and be able to offer more competitive offers.  As we have seen, human resource managers believe that family supportive policies are what can attract and retain employees.

Finally, it makes sense for the government to encourage it.  While there will be a small uptick in government spending in “entitlement” spending due to how the Paid Leave Insurance would be distributed, there would likely be a cost savings as those who take leaves will likely see a decrease in other government spending.  Houser and Vartanian found that those who received paid family leave were much less likely to have to rely on public assistance.   Specifically they found

Women who return to work after a paid leave have a 39% lower likelihood of receiving public assistance and a 40% lower likelihood of food stamp receipt in the year following the child’s birth, when compared to those who return to work and take no leave at all.  Men who return to work after a paid family leave have a significantly lower likelihood of receiving public assistance and food stamps in the year following the child’s birth, when compared to those who return to work and take no family leave at all.

This should be self-evident by relying on the paid family leave, they were able to stay afloat without having to deal with additional public assistance.

Where it stands now

Hillary Clinton, Bernie Sanders, and Martin O’Malley all announced their support for paid family leave laws.  Clinton previously supported a similar law in her 2008 run for the Democratic nomination.  Cohn believes that Clinton would support such a law if she became president and would lay it out as a central tenant in her governing agenda.  The most ambitious form of paid leave among federal legislators is The Family and Medical Insurance Leave Act (The FAMILY Act) which has been introduced by Kirsten Gillibrand and Rosa DeLauro.  Their law would allow workers up to 12 weeks of up to 66%  of their monthly wages up to a capped amount for a serious health condition; the serious health condition of their child, parent, spouse or domestic partner; and the birth or adoption of a child.  It would cover all workers in all companies and would be funded by payroll contributions which they described as two-tenths of one percent by each the employer and employee.  It would also create a new Office of Paid Family and Medical Leave within the Social Security Administration.  Clinton’s plan would cost about $1 billion in annual spending.  This bill would cost more.  While she hasn’t endorsed this plan, she has said she supports the principle.

Marco Rubio in his failed bid to win the Republican presidential nomination offered a plan to pay for family leave which was based on a tax credit.  Rubio argued against a federal mandate comparing the paid family and medical leave to Obamacare.  Rubio argued for a tax credit to help pay for it.  The tax credit would be a “25% non-refundable tax credit for businesses that voluntarily offer at least four weeks of paid family leave, limited  to twelve weeks of leave and $4,000 per employee each year.”  In other words, as Jonathan Cohn writes, “for every four dollars in wages that companies paid out to employees on leave, they would get just one dollar back from the government.”    Since the $4,000 is the maximum tax credit, a company would need to pay $16,000 to get the maximum credit.  As Cohn reports other policy analysts as saying that the tax credit is just too small for companies to take advantage of the policies.  The Tax Policy Center issued a report on tax breaks similar to this such as hiring people on welfare and people with disabilities, and found that   While I should refrain from commenting on someone’s failures when they were trying to run for President, Rubio’s plan was modeled after the Republican plan put forth by Deb Fischer and Angus King. It is surprising that Rubio even mentioned this type of plan while other more conventional candidates running for President such as Jeb Bush argued against paid family leave.

I think it’s more likely that Gillibrand’s plan with the FAMILY Act is the better plan; I think that Rubio’s plan is more likely to pass.  My assumption is that there will be a compromise to increase the tax credit for employers to be able to take advantage of offering such a package.  While I do believe that paid family leave would be difficult to be able to pass through an increasingly hyperpartisan Congress, I think that it’s worth seeing where everyone’s support lies.  My support lies with Gillibrand and her plan.  I think it’s a better plan because I believe that it covers more workers and is more likely to be followed through with.  Rubio’s plan, I believe, will be hailed as a plan that will solve the issue while doing nothing.  Nevertheless, paid family leave is an important idea and one that deserves our support.   I believe that I have laid out the arguments in favor of such a plan.




Legislative Priorities: Voting Rights


Legislative goals:

  1. States that require voter registration should make same-day voter registration available at the polling place on the day of the election
  2. Allow the use of a single absentee ballot application for subsequent elections
  3. Prohibit election officials for requiring identification that has a cost as a condition to vote or register to vote
  4. Require states to automatically register individuals registering with DMV’s for driver’s license.  Require states to follow pre-registration for individuals who are 16 to ensure that they are registered to vote by the time that they are 18.
  5. Change election day to  Friday, Saturday, and Sunday for the first Friday after the first Monday in November on even number years, as well as every fourth year for presidential elections.  Election day Friday should be declared a federal holiday.
  6. Create a new determination for preclearance by the Department of Justice for any changes made to voting laws and regulations.  This new determination will be for states if there there were at least 5 voting rights violations in the last 25 years and 3 voting rights violations during the previous 15 years, if at least one of the violations were committed by the state itself.  The preclearance requirement for districts and states would also be triggered if it was determined that less than 50% of those who are of voting age are registered to vote on November 8, 2016.
  7.  Restores the right to vote for non-violent felons provided that they are not in a correctional facility at the time of the election.  For those on probation, the right to vote will be restored at the end of their probation.  This will also apply retroactively.  Those affected will be automatically registered to vote and will be notified that their voting rights are restored and that they are registered to vote.
  8. Redistricting after a census can only take place once after each census and can only be done by an independent district commission.

Information for legislative goals:

Our goal is to try to make voting even easier than it currently is.  The hope is that when people do not have as many roadblocks in their way, it will increase voter turnout and provide a more representative electorate.  I’m not naive enough to believe that a more representative electorate will elect politicians that share my views.  I do believe that having a more representative electorate is a worthy goal in and of itself.

In the 1980 book, Who Votes?, the authors concluded that the voter registration date was the single largest impact on voter turnout.  They recommended a move to same-day voting registration.  Same-day voting registration allows voters who are not registered to vote to go to their polling place and fill out the voter registration form and then be able to vote.  The authors predicted that if same-day voting registration was enacted in all 50 states, voting turnout would be 9% higher.  This prediction held on rather nicely.  In a study titled “Election Day Registration’s Effect on U.S. Voter Turnout” the authors Craig Leonard Brians and Bernard Grofman project based on their studies that moving to same-day registration would product about a 7 percentage point boost in the average state.  Laura Rokoff and Emma Stokking looked at the effect of same-day registration in “Small Investments, High Yields: A Cost Study of Same Day Registration in Iowa and North Carolina” for Demos and write that average turnout in states with same day registration are 10-12 percentage points higher than states without same day registration.  In 2008, same-day registration states led the nation in turnout by 7 percentage points and by nearly 6 percentage points in the 2010 elections, they write.  Brians and Grofman conclude that it may be a higher turnout boost in states with higher urban populations.  By looking at past elections, they found that those in the low and high portion of the socioeconomic spectrum have a 3% boost by moving from voting registration from 30 days out to same day registration.  The middle socioeconomic status which has more people in it had a 5% increase when moved from a 30 day deadline to same day registration.

The biggest stumbling block for this policy is the idea that same day registration would advantage one political party.  While intuitively it would make sense that voters taking advantage of same-day registration would tend to be Democratic voters, they did not find any significant evidence that same-day registration would help one way or the other for either major political party.  The University of Wisconsin-Madison’s Jacob Neiheisel and Barry Burdern found that there was a slight increase for Republican voters with the same-day registration rules. The other stumbling block that I can think of is that it is cost prohibitive.  Rokoff and Stokking looked at North Carolina and Iowa in their paper.  In 2008, over 250,000 citizens used same day registration in 2008 and 45,000 used it in Iowa in 2008.  Rokoff and Stokking found that the majority of counties in Iowa reported little to no additional costs.  The costs that they discovered were primarily due to printing and mailing the forms.  North Carolina, likewise, did not see that much of an increase in spending but did need additional staffing at smaller counties.

Voter ID is a very common response called on for trying to fix our electoral woes.  On the one hand, conservatives and Republicans argue that voter ID is necessary to ensure that the electoral system is not abused by fraud.  On the other hand, liberals and Democrats claim that voter ID unfairly target minority voters and the poor.  In an investigation of over 1 billion votes cast, Loyola Law School professor Justin Levett found only 31 credible incidents of voter impersonation.  In a study by the Government Accountability Office (GAO) where they reviewed 10 studies regarding voter ID, they found that 5 studies showed that there was not a statistically significant effect on voter turnout.  In 1 study, there was an increase in voter turnout nationwide of 1.8 percentage points.  The 4 other studies showed voter turnout decreased by 1.5-3.9 percentage points. More than half of the population of the United States now lives in states that require ID’s to vote, as 34 states have passed some type of voter ID law.  The strictest voter ID laws have been passed since 2008.  Justice Ruth Bader Ginsburg has called the laws “purposely discriminatory.”

It’s fairly difficult to pin down the exact percentage of the population does or does not have proper identification to be able to vote.  The Washington Post reports that there’s an estimated 1-11% of registered voters who do not have valid photo identification.  The GAO looked at various studies to help determine this information.  In a 2012 study that they looked at, 86% of all registered voters had a driver’s license, state id card, or gun permit.  Yes, a gun permit is a valid ID for voting purposes in Texas.  89% of registered whites had valid voting ID.  This compared to 83% of Hispanic registered voters and 79% of African-American registered voters.  Comparatively, a similar study showed that 84% of all registered voters had valid photo ID in Indiana.  In a nationwide study in 2013, they found that 84% of white registered voters had a valid driver’s license.  This compares to 73% of registered Hispanic voters and just 63% of registered black voters.  That seems like a problem as Zoltan Hajnal, Nazita Lajevardi, and Lindsay Nielson present in a working paper from the University of California-San Diego note that there is clear evidence that they “tend to emerge in states with larger black populations.”  If we couple that with the fact that minorities are disproportionately asked for identification by poll workers, we can see the problem for voter id’s.

The studies show that there is not a statistically significant effect on voter turnout, overall.  However, as Nate Silver points out that is giving deference to the null hypothesis.  Or to paraphrase former President Bill Clinton, it depends on what your definition of statistical significance is.  In the working paper by Hajnal, Lajevardi, and Nielson they tried to identify the impact on voter id compared to states without strict voter id laws.  What they found is fairly striking.  In general elections, they found that Latino turnout was 10.3 points lower in states with photo ID than in states without strict photo ID regulations. For multi-racial Americans, turnout was 12.8 points lower under strict photo ID laws. For blacks, the turnout was 4.8 points lower in general elections with states with stricter voter id laws.  Multi-racial Americans voted at almost the exact same predicted rate as whites in non-photo ID states but were 9.2% less likely than whites to participate in general elections in photo ID states.  The GAO’s study looked at turnout in Kansas and Tennessee compared to a list of other states that did not implement voter id laws.  Turnout declined by 1.9-2.2 percentage points more in Kansas and 2.2-3.2 percentage more in Tennessee.  Nate Silver noted in that FiveThirtyEight piece that photo id decreased turnout by about 2% as a share of the registered voting population.

Possibly a bigger effect on voter turnout would be the restoration of voting rights who have completed their sentence and probation.  According to The Sentencing Project, 2.5% of the total US voting age population is disenfranchised due to a current or previous felony conviction.  Taking away voting rights from those who are felons effects African-Americans disproportionately.  1 out of every 13 African-Americans of voting age is disenfranchised.  In some states including Florida and Kentucky, more than 205 of African-Americans are disenfranchised.  In a study of felon voting patterns, the authors found that on average about 30% of felons and ex-felons would vote, if given the chance.  Not surprisingly, based on the racial disparities of this laws, the vast majority (about 3 our of 4) would vote for the Democratic nominee for President.

Taking away the right to vote of a criminal has a long tradition going back to ancient Greece and Rome.  However, I don’t believe it does anything in our modern society.  The Brennan Center for Justice argues in numerous amicus briefs that “permitting individuals the right to vote upon release from prison substantially promotes” reintegration mechanisms.  In their amicus brief for Griffin v. Pate LVW, they argue that continued disenfranchisement “undermines the process of reintegration by treating individuals who have served prison sentences as second-class citizens.”  In McLaughlin v. City of Canton, the court argued:

Disenfranchisement is the harshest civil sanction imposed by a democratic society.  When brought beneath its axe, the disenfranchised is severed from the body politic and condemned to the lowest form of citizenship, where voiceless at the ballot box…[he] must idly by while others elect his civic leaders…choose the fiscal and governmental policies which will govern him and his family.

As we see with voting and most political issues, how you choose to vote is generally based on discussions that you have with your family or with other members of your community.  Giving felons the right to vote gives them an additional way of conversing with their neighbor to be able to help reintegrate into society.  Further, voting is an acquired trait.  In their amicus brief, the Brennan Center argues “taking one’s children to vote…is seen as a simple and effective way to demonstrate to them the function and importance of American democracy.”  They argue that this is a ripple effect.  If one person is disenfranchised, they will not take their children to vote and an entire family can become discouraged.  If the family is discouraged, they may not show up to vote.  Their voices are weakened and not heard.  It continues on until an entire community is weakened from their voices not being heard.

Changing the registration date deadline, not requiring ID to vote, and restoring felon’s voting rights would have the biggest impacts on voter turnout.  Our goal for a democracy is to have as many people turn out to vote to allow their voices to be heard.  We believe that out democracy and our communities are strengthened when there are more voices heard.  Much like the Brennan Center for Justice argues, is a ripple effect.  We will have more people interested in strengthening their communities.  These three ideas are relatively simple to implement and should be implemented as soon as possible on a national level to maximize turnout.















The case against the death penalty

The troubling case of Carlos DeLuna

In February of 1983, Carlos DeLuna and Carlos Hernandez went to a bar in Corpus Christi.  The two Carloses looked very similar.  Sometimes they were even mistaken for twins.  They were the same height and weight.  Although, there was a slight difference.  Hernandez had a moustache while DeLuna did not.  After the bar, Hernandez went to a gas station, the Shamrock to buy something.  After waiting a while, Hernandez had not returned.  DeLuna went to see what was taking so long and he saw Hernandez wrestling a woman behind the counter.  Scared because of his prior police record for sexual assault, DeLuna took off running.  When he heard sirens, he got even more scared and hid underneath a pickup truck.

deluna carlos.JPG

Image: Carlos DeLuna from the Corpus Christi Police Department; image from the Atlantic

Forty minutes later, he was found there by Corpus Christi Police.  He was arrested for the murder of Wanda Lopez.  Lopez had been stabbed to death.  Police photos showed blood splattered over three feet high.  DeLuna did not have any blood on him.  Police assumed that the rain washed away the blood.  Less than two hours after the murder, the owner of the Shamrock was allowed to wash down the store washing away crucial evidence that could potentially lead to the killer.  As far as the Corpus Christi police were concerned, they had caught their man.

DeLuna, for his part, claimed his innocence.  He took it one step further.  He named the killer.  Carlos Hernandez was the killer.  Corpus Christi police called Hernandez a “phantom.”  The prosecutors were given the name by DeLuna’s lawyers but they were unable to find any evidence that this person existed.  The chief prosecutor of the case called Hernandez a “figment of [DeLuna’s] imagination.”

hernandez carlos.JPG

Image of Carlos Hernandez from the Corpus Christi Police Department.  Image appeared in the Atlantic.

DeLuna was executed for the murder of Lopez on December 8, 1989.  In October of 1989, Hernandez was arrested for the attempted murder of Dina Ybanez.  This information was not brought to the courts of Texas in order to help exonerate an innocent man.

We know all of the information mentioned above and even more information showing the innocence of DeLuna because of the research of Professor James S. Liebman and his colleagues in the book Los Tocayos Carlos: Anatomy of a Wrongful Execution.

Liebman et al. found even more disturbing information regarding this case.  They found that Hernandez bragged to members of the community that he was a knife murderer and that he was the one who killed Lopez.  Further Hernandez joked that his stupid namesake was the one taking the blame.  Oh yes, they found this information out in less than 24 hours after hiring a private detective.  Yet, Hernandez was so elusive that he was unknown to prosecutors.  These claims that he was the killer reached the police within weeks but was dismissed by the prosecutors.

Hernandez had been on parole for virtually his entire adult life.  As reported by Liebman, Hernandez had been arrested 39 times.  Several of these crimes had been due to wielding his knife.  Some of his arrests were for holding up local gas stations.  What’s worse is that he was arrested twice for a 1979 murder.  Once in 1979 and once after DeLuna was on death row.  This information was not disclosed to the courts.  Instead, Hernandez was a phantom.

Liebman and his team of researchers pored over the crime details and police reports for this crime.  They found a shoeprint in blood at the crime scene that was never investigated.  No usable fingerprints were taken at the scene of the crime.  A beer can, a cigarette butt, chewing gum, a button, and a comb were not forensically examined for saliva and/or blood.  When the researchers went to examine the DNA of the crime after DeLuna’s death, they were told that all of it had disappeared.

Carlos DeLuna was executed for the murder of Wanda Lopez.

Nebraska and the Death Penalty

Picture of Governor Pete Ricketts of Nebraska picture originally appeared on Huffington Post

In May of 2015, Nebraska legislators brought LB268 to be considered for a debate.  LB268 was introduced by Ernie Chambers who had been working to this end for four decades.  LB268 would repeal the death penalty in Nebraska and would instead have life in prison as the maximum sentence for first-degree murder.  Nebraska Attorney General Doug Peterson wrote a letter to the Nebraska legislature that “under current Nebraska law, a sentence to life imprisonment is effectively life imprisonment without (the possibility of{ parole.”

Governor Pete Ricketts said in a statement ahead of the vote, “no one has traveled the state more than I have in 18 months, and everywhere I go there is overwhelming support for keeping the death penalty in Nebraska.  Ahead of this morning’s vote, I am reminding senators that a vote for cloture on LB268 is a vote to repeal the death penalty and to give our state’s most heinous criminals more lenient sentences.  This isn’t rhetoric.  This is reality.”  The stakes were high.  Legislators knew that this bill would face the veto by Governor Ricketts.

Conservative legislators banded together with their progressive counterparts and passed the bill 32-15.  In order to override the veto, they would need 30 votes.  Governor Ricketts criticized the legislature for their votes when issuing a veto saying that “while the legislature has lost touch with the citizens of Nebraska, I will continue to stand with Nebraskans and law enforcement on this important issue.”  After intense lobbying by the Governor and his team, a vote to override the veto succeeded 30-13.

State senator and loyal Ricketts ally Beau McCoy announced that he would do everything he could to stop this bill from being enacted.  McCoy launched a new organization called Nebraskans for Justice to help put the measure on the ballot for the November general election ballot.  McCoy said,”I am standing with Nebraskans who are thoroughly disappointed with Nebraska legislators who voted to end Nebraska’s death penalty.”

McCoy was not the only one disappointed.  State Senator Bill Kintner of Papillion filed an amendment on LB268 to replace the method of execution from lethal injection to the firing squad.  Kintner was disappointed and bitterly complained, “this body is intent on moving the progressive-left agenda ahead.”  Senator McCoy was successful in getting this measure on the ballot in time for the November 2016 election.  If voters in Nebraska vote in favor of the amendment there will effectively be a repeal of the repeal of the death penalty.  Rejecting the measure will keep the death penalty repeal.  I urge all Nebraska voters to reject this measure.  It is time to show Governor Ricketts that he is wrong.  We need to show Senator Kintner that he is wrong.  This is not a partisan issue.  The death penalty as it stands is arbitrary, unconstitutional, and economically infeasible.

Economic costs of the death penalty

The American Law Institute (ALI) is made up of 4,000 judges, lawyers, and law professors.  They helped create the penal system that we currently have and helped create the death penalty, as we know it.  In 2009, they voted to remove the death penalty from their model penal code.  They argued that the death penalty is “so arbitrarily fraught with racial and economic disparities and unable to serve quality legal representation for indigent capital defendants, that it can never be administered fairly.”  As we will see later with regards to the arbitrariness of the death penalty, poorer defendants are more likely to have their crime considered a capital offense.  The American Civil Liberties Union (ACLU) has found that 90% of those on death row could not afford to hire a lawyer at the time of their trial.

In Gideon v. Wainwright, the Supreme Court found that the 6th Amendment’s guarantee of counsel is a fundamental right essential to a fair trial.  Writing for the majority, Justice Hugo Black wrote a fair trial “cannot be realized if the poor men charged with crime has to face his accusers without a lawyer to assist him.”  Even looking at this case, we see that Florida and other states would only allow lawyers appointed for the indigent in capital cases.  This certainly adds to the cost of death penalty cases.

As we see in state, after state, after state, the death penalty is significantly more expensive than other options.  The Nevada Legislative Auditor issued a report studying the cost of the death penalty in Nevada.  They found “the death penalty, from arrest through the end of incarceration, costs about $532,000 more than other murder cases where the death penalty is not sought.”  Where the death penalty was sought, sentenced, but the offender was not executed the cost was $1.3 million and the cost was only slightly lower where the death penalty was sought but not sentenced at $1.2 million.  Where the death penalty was not sought, the costs were $775,000.

Kansas issued a study on the cost of the death penalty and the Kansas legislature approved the linked report.  The total cost for the 9 trial cases where the death penalty was sought costs on average $395,762 compared to $98,963 on average for the 6 trial cases where the death penalty was not sought.  Some of that has to do with the the fact that when the prosecution sought the death penalty, there was an average of 40 days in court compared to 17 days for cases where the death penalty was not sought.

Seattle University commissioned a study on the death penalty in Washington.  The found that the total costs of the death penalty cases were about $3.07 million compared to $2.01 million for non-death penalty cases.  The biggest differences in the costs were found with the defense costs, prosecution costs, and the petition/appeals for death penalty cases.  The defense costs were about 2.8 to 3.5 times more expensive than non-death penalty cases.  Prosecution costs were about 2.3-4.2 times more expensive and the appeals were 5.7-6.3 times more expensive.

Seeking the death penalty is consistently found to be more expensive than non-death penalty cases.  The only question really is how much more expensive it is.  The rebuttal to this is that while seeking the death penalty in trial is more expensive, the costs even out after a criminal is executed compared to the cost of incarcerating a criminal for the remainder of their life.  Intuitively, this argument holds some appeal.  Unfortunately, it does not match reality.  This is because of two main reasons.  The first one is that in 2014, the executions occurred on average about 18 years after the conviction of the defendant.  Because of the lengthy time in prison, it is hard to find easy cost-savings.  The other reason for a lack of cost-saving is that keeping and maintaining death row is fairly expensive.   In fact, death row inmate management costs more on average than the management of non-death row inmates.  There are a couple of factors for this which include greater security, inmates having their own cells, and that there is a disparity in the inmate-to-staff ratios.

The Seattle University studied linked to earlier found that the cost for incarcerating non-death penalty inmates was 0.7-0.8 times the cost of death row inmates.  As they note in their report, though, they used the “same average daily cost post-2013 for both the [Death penalty] and [non-death penalty] groups.  This resulted in an underestimation of DPS/DPI DOC costs.”  The report of the Kansas legislature noted that it cost $49.3 thousand per inmate per year for a death penalty inmate compared to $24.69 thousand per inmate per year for non-death penalty inmates.  The report from the Nevada legislative auditor found that for incarceration costs, the death penalty is the most expensive sentence for those convicted of first degree murder.  Noting “incarceration costs are higher for the death penalty subgroup, since they are typically housed at a higher cost facility.”

All of this is before we even get to the cost of obtaining the drugs needed to execute an inmate with lethal injection.  With a number of pharmaceutical companies no longer offering the drug cocktail, the prices have skyrocketed.  I do understand that we cannot just reduce moral questions of actions such as the death penalty with an economic rebuttal.  It’s not enough to show that a policy is economically unsound to show that the described action is immoral or should otherwise not continue.  With all policies, I believe that we should do a calculus of cost-benefits to see what we should do going forward.  The death penalty as it currently stands is not viable only on economic grounds but is on shaky constitutional grounds, as well.


I should note that before we continue that a lot of the information for this section is based on the brilliant dissent from Justice Stephen Breyer in Glossip v. Gross.

The 8th Amendment of the United States Constitution plainly states “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”  In Weems v. United States, the Supreme Court found “that it is a precept of justice that punishment for crime should be graduated and proportioned to the offense.”  Justice John Paul Stevens wrote in the opinion for Atkins v. Virginia “a claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the ‘Bloddy Assizes’ or when the Bill of Rights was adopted but rather by those that currently prevail.”  It is on this precedent where Justice Breyer calls into question the constitutionality of the death penalty.

Justice Breyer writes that the death penalty fails the constitutional question because of “serious unreliability, arbitrariness in application, and unconscionably long delays that undermine the death penalty’s penological purpose.”  As we’ve seen, there have been innocent people executed for crimes that they commit.  Beyond that, there has been a number of cases where people have been sentenced to death but were exonerated.  There have been 115 exonerations in capital cases.  In his dissent, Justice Breyer notes that courts are 130 times more likely to exonerate a defendant when a death sentence is at issue.  Comparing to other murders, they are nine times more likely to exonerate a defendant with a capital murder compared to noncapital murder. Why does this happen?

The simplest explanation is that there is tremendous bias with the jurors.   In an article titled The Principled Executioner: Capital Juries’ Bias and the Benefits of True Bifurcation, Susan D. Rozelle explores the bias found in jurors.  The term used to describe potential jurors who will not convict someone of death even if they are convinced of a defendant’s guilt beyond a reasonable doubt is nullifiers.   She cites a Supreme Court Case Lockhart v. McCree  that allowed nullifers to be excluded from the guilt phase section of a capital case.  Further, the Supreme Court found that each juror should be “willing to consider all of the penalties provided by state law.”  Early social science studies found that once prosecutors were able to eliminate nullifiers from juries, those who remained were more likely to hold beliefs that would help the prosecution.  An example of this belief was “if the police have arrested an individula and the district attorney has brought him to trial, there is good reason tto believe that the man on trial is guilty.”

Moreover, eliminating nullifiers from jury pools made the juries more homogeneous.  This may not sound like a problem.  But similar people see evidence the same way.  When you have more people who are different who have different worldviews and different backgrounds, the same piece of evidence is seen in a different way.  As Professor Cass Sunstein wrote “normative bias is well supported by evidence of confirmation bias, by which people tend to seek out, and to believe, evidence that supports their won antecedent views.”  Or more simply, there is a tendency to see what we expect to see.  When you have the same worldviews or same backgrounds people will have the same expectations for what they should see so it will match up.

The Capital Jury Project (CJP) undertook a large study interviewing 1200 jurors who served on 350 capital trials in fourteen states to help study the behavior of capital case jurors.  Their conclusion was that “capital jurors hold disproportionately punitive orientations toward crime and criminal justice, are more likely to be conviction-prone, are more likely to hold racial stereotypes, and are more likely to be pro-prosecution.”  Over 70% of jurors interviewed felt that death was the only acceptable punishment for a murder committed by a defendant with a prior murder conviction.  Almost 60% agreed that death was the only acceptable punishment for planned or premeditated murder.  There were a few other categories including where the victim as a police officer or prison guard, murders involving multiple victims, and murders committed by a drug dealer.  About half of those interviewed felt that death was the only acceptable punishment in each of those situations.  About 30% of those interviewed stated that death was the only acceptable punishment for all of the above crimes.  About 24% of the jurors stated death was the only acceptable punishment for felony murder where the killing that occurs during another crime.  More troubling, some of the capital jurors offered some situations where they would not vote for the death penalty which included war time, children playing with a gun, hunting accident, or if the guy was not guilty.  Comparatively, only 2-3% of jurors who were interviewed stated that the death penalty is unacceptable in those situations mentioned.

What could be more troubling than that?  Perhaps the fact nearly half of those interviewed admitted that they decided the proper punishment before “they had heard a single piece of evidence on the issue of punishment.”  Or that about 10% of jurors stated that the death qualification question (being asked if they would consider the death penalty) “made them think the defendant must be or probably was guilty and that death must be or probably was the appropriate punishment.”

But before we get to the trial, there is tremendous pressure on the community including police officers and prosecutors to find the person who committed this crime.  Capital cases tend to be horrendous crimes.  There the police face pressure to quickly find the person who committed the crime.  In cases where the defendant was exonerated, the police investigation was shorter than those where the defendants were not exonerated according to the article “Frequency and Predictors of False Conviction: Why We Know So Little, and New Data on Capital Cases.”  Because of this pressure, there is a greater likelihood of of the hallmarks of wrongful convictions as noted in Convicting the Innocent: Where Criminal Prosecutions Go Wrong including false confessions, mistaken eyewitness testimony, and untruthful jailhouse informants.  Because of all of these factors, researchers estimate that about 4% of those sentenced to death are actually innocent.

Justice Breyer notes in his dissent that when the death penalty was reinstated in Gregg v. Georgia that the death penalty would be unconstitutional if “inflicted in an arbitrary and capricious manner.”  A lot of studies found that individuals who were accused of murdering white victims as opposed to minority victims were more likely to receive the death penalty.  The Government Accountability Office (GAO) found in 1990 that 82% of the 28 studies found that “race of victim influences capital murder charge or death sentence.” A similar finding was found in the article Furman, McCleskey, and a Single County Case Study published in 2013.  The geographic location of the defendant and victim make a difference, as well.  29 counties nationwide account for half of all death sentences imposed nationwide.  In 2012, 59 counties accounted for all death sentences nationwide.  The reasons for this are that only some states permit the death penalty, the counties may have weaker public defense programs, or it could be that the federal district that the jurors will be filled are a big racial difference than the county where the crime occurred.

Beyond that arbitrariness, there is an arbitrariness involved with what crimes are going to be charged as capital crimes.  Justice Breyer lists a number of crimes that were prosecuted as capital crimes compared to other murders.  Most of them include a single murder from a defendant who previous felony convictions compared to a murderer with multiple victims or other offenses in the context of the crime that make it seemingly more heinous.  I won’t repeat them all here.  But the crimes he chooses are supposed to show that capital charges are arbitrarily chosen and I believe him.

As we look at Gregg v. Georgia, we know that every safeguard has to be observed when a defendant’s life is at stake.  These requirements take a long time to implement.   As Justice Breyer writes, “unless we abandon the procedural requirements that assure fairness and reliability, we are forced to confront the problem of increasingly lengthy delays in capital cases.”

There were 35 executions in 2014.  These executions occurred on average about 18 years after the initial sentencing.  Some states have even longer waits.  For instance, in Florida, the last 10 prisoners executed spent nearly 25 years on death row before execution.  The delays have only increased in recent years.  The average delay in 1960 was two years.  In 2004, it was 11 years.  According to the Bureau of Justice Statistics, nearly half of the 3,000 inmates on death row now have been there more than 15 years.

The ACLU found that inmates on death row are kept in isolation for 22 or more hours per day.  Solitary confinement can lead to anxiety, paranoia, hallucinations, rage, and panic.  Beyond that as Justice John Paul Stevens wrote in Gomez v. Fierro lengthy delays subject “death row inmates to decades of especially severe, dehumanizing conditions of confinement.”  Or in the denial of cert for Lackey v. Texas, Stevens wrote that “excessive delays from sentencing to execution can themselves constitute cruel and unusual punishment prohibited by the Eighth Amendment.”

The delays are necessary because they provide additional safeguards to make sure that the inmate is guilty but they are damaging in their current form.  These delays undermine the claim that the death penalty is a retributive punishment that effectively deters crime.  This claim is undermined by social science research.  The National Research Council reviewed the empirical evidence saying “despite 30 years of empirical research in the area, there remains no reliable statistical evidence that capital punishment in fact deters potential offenders.”

If we take it all into consideration: the unreliability, the arbitrariness, and the delays, I find myself agreeing with Justice Breyer that we need a wholesale review of the constitutionality of the death penalty.


If ridding ourselves of the death penalty were as straightforward and easy as simply agreeing with Justice Breyer, we wouldn’t have these debates that we’ve been having for over 40 years.  Instead of focusing on concrete issues and what has happened in the past, we are often faced with abstract questions or hypotheticals over would we support the death penalty in what situations.  While it’s impossible to predict how I would respond given a particular situation, based on the evidence that is out there, the death penalty should be repealed.  In Nebraska, it was successfully repealed.  I urge all of you to vote AGAINST the Nebraska Death Penalty Repeal Referendum on November 8.


















Legislative priorities: Reforming opioid and heroin laws

Policy goal: The ultimate goal of reforming these laws is to focus on harm reduction rather than penalization, decrease the atmosphere of fear, and help prevent unnecessary death.

Specific policy aims:

  1. Support Good Samaritan laws
  2. Provide standing prescription for naloxone and opiod overdose reversal medications
  3. Work towards creating safer injection sites for drug users
  4. Extend legal clean needle exchange programs to cover all 50 states and rescind the ban on federal funding for syringes
  5. Work with general practice physicians and pain-specialists to rewrite the guidelines for prescribing opioid painkillers

Information for specific policy aims:

The leading cause of accidental death in America is drug overdoses, specifically opioid overdoses.  As prescriptions for these types of painkillers have risen over the years, as has the death toll from overdoses.  This was brought up in the presidential primary in New Hampshire with stories from candidates including New Jersey Governor Chris Christie and at least a passing mention of the other Republican contenders.  In 2014, there were 28,647 deaths from opioid drugs.  This represents 61% of all drug overdose deaths in 2014.  The number of overdoses from opioids has more than tripled since 2000.  Unfortunately, the epidemic is growing as opposed to slowing.

With that in mind, we need ways to be able to get victims of drug overdoses to the hospital so that they can be treated as soon as possible.  As in most medical emergencies, time is of the essence.  More than half of drug overdoses occur in front of another witness but only 10-56% of individuals are willing to call 911 for help.  Even with that in mind, people are only willing to call 911 after efforts of reviving the victim are unsuccessful.  In most cases this fear comes in the form of penalties to those who are witnesses to the overdose.  Law enforcement can, in most states, charge people with drug or paraphernalia possession and/or being under the influence when they arrive on the scene.

Twenty states and the District of Columbia provide some type of immunity for people acting as “Good Samaritans” and are calling the authorities to handle a medical emergency.  They are offered protection from being charged with being under the influence, drug possession, or possession of paraphanaelia.  They are not immune from trafficking drug charges or large quantities of drugs (intent to sell).  This is a commonsense practice that can save hundreds, if not, thousands of lives.

Another practice that can be effective in reducing the number of deaths related to opioids would be to allow for standing prescriptions of the opioid reversal drug, naloxone.  Naloxone is an injection that is available at 0.4 mg/ml to 1-mg/ml solution.  It can be administered into a vein, into a muscle, or under the skin.  There is work being done to make naloxone into a spray.  There is also a tablet that may be created for naloxone, as well.  It only produces effects if opioids are present in the body.  A dose of naloxone will compete with an opioid on the receptor and will partially or completely reverse the opioid effect.  Naloxone will produce withdrawal symptoms within minutes and will subside after about 2 hours.  But because it does not last very long, there may be a need for repeated doses of naloxone to be able to positively reverse the drug overdose.  It is not a habit forming drug.

While there are those who think that prescribing Naloxone will further the drug overdose epidemic, I find this line of argument mainly unfounded.  The National Institutes of Health (NIH) found that 35% of those surveyed would feel more comfortable using greater amounts of heroin if Naloxone were readily available.  In the same study, 90% of users had reported witnessing an overdose and providing lay remedies to revive the victim.  While the 35% of those who may feel more comfortable using a greater amount of heroin, the ones who have tried to revive a victim would be able to save many lives if Naloxone was available.  87% reported that they would be willing to participate in a training program and 84% would carry naloxone after training.

The American Medical Association (AMA) has endorsed policies that would strengthen community programs to both train and educate health care workers and opioid users about the use of naloxone.  The European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) found evidence that take-home naloxone programs decrease overdose-related mortality.

The CDC has provided training for people to use this drug since 1996.  They’ve trained over 53,000 people and have used it to reverse over 10,000 drug overdoses.  The most successful program has been San Francisco which has over 3,600 prescriptions filled since 2013 and have saved 916 lives.  Some states, such as Washington, have passed laws that allow for anyone at risk of having or witnessing a drug overdose to obtain a prescription.

We should adopt this practice of providing those at risk of witnessing an overdose to have a prescription of Naloxone and to allow for a standing prescription of Naloxone on pharmacies.  In order to do so, we will need to put in rules so that doctors cannot be held liable if a patient overdoses and naloxone is not administered in time to be able to save the patient.  The availability of the prescription would not be enough, we would need to provide additional community training to overcome the potential risks of take-home Naloxone.  The NIH study found that 62% of heroin users would be less likely to call 911 for an overdose and 30% might leave an overdose victim after naloxone revival.  We would need to work with specialists and the medical community to provide additional training so that the Naloxone resuscitation will be as effective as humanly possible.  West Virginia has expanded the use of Naloxone to reduce deaths with opioid overdoses and we will have to look to West Virginia to see how their programs work to ensure that any similar programs will be administered correctly.

While we are in the middle of an opioid abuse epidemic, there are a number of opioid addicts who move to use heroin.  The dangers of heroin include the danger of needles, specifically dirty needles.  Dirty needles can lead to outbreaks of HIV, hepatitis, and other blood-borne pathogens.  Needle exchange programs allow people to trade dirty needles in exchange for free sterile needles.  Beyond that, they serve as safe spaces for drug users to try to access medical care and referrals to drug treatment programs.  Federal funding for these programs have been banned since 1988.

In January of 2016,a new omnibus budget was passed to allow public health departments and nonprofit organizations to use federal funding for needle-exchange programs in high risk areas, as flagged by the CDC.  The budget would not allow these health departments and public health organizations to be able to pay for the syringes.

The CDC stated a health goal for 100% coverage providing all injections are performed with a sterile syringe.  The Drug Policy Alliance found that we are far short of this goal.  The estimates of sterile syringe coverage in major metropolitan areas are from 0.03% to 22% with a mean of 3.2%.  There are about 0.9 to 2 billion injections nationally each year but there are only about 43 million sterile syringes distributed by needle exchange programs annually.

According to the Substance Abuse and Mental Health Services Administration, there are an estimated 350,000 regular injection drug users in America.  Drug users still deserve to be able to be safe from diseases and not risk contracting blood-borne pathogens.   After taking out mother-to-child HIV transmission cases, about 35% of all AIDS infections can be attributed to injection drug use.  This can almost directly be linked to the lack of availability of clean needles.  The CDC has reported that the one-time use of sterile syringes remains the most effective way to limit HIV transmission associated with injection drug use.

HIV and AIDS are not the only diseases that injection drug users are at risk of contracting.  The most prevalent other diseases are hepatitis B and hepatitis C.  While these diseases are not as common in the United States as they are in other portions of the world, there are an estimated 800,000 to 1.4 million people in the United States with chronic hepatitis B and hepatitis C, according to the National Institutes of Health.  According to the Hepatitis B Foundation, about 40,000 people will become newly infected with Hepatitis B each year.  The death rate, according to the CDC, is 0.7% from the cases that they studied.  From the same set of cases, the CDC found that 61.6% of cases caused hospitalization.  Hepatitis C actually seems to be more dangerous.  The CDC found that in 2007, the number of deaths associated with hepatitis C surpassed the number of deaths by HIV.  This number has only increased since 2007.  The CDC believes that this number is even underestimating the actual death total.  They noted that the “mortality burden is likely much greater than these numbers suggest because death certificate validation studies have concluded that only a fraction of HCV-infected decedents have HCV listed on their death certificate, even when pre-mortem evidence of serious liver disease is present.”  In 2014, a total of 2,194 cases of acute hepatitis C were reported to the CDC from 40 states.

In a 2000 report by former United States Surgeon General David Satcher, “there is conclusive scientific evidence that syringe exchange programs, as part of a comprehensive HIV prevention strategy, are an effective public health intervention that reduces transmission of HIV.”  In a study cited by the World Health Organization (WHO) found “an 18.6% annual decrease in the HIV rate in 36 cities with [needle exchanges] compared to an 8.1% annual increase in 67 cities that did not contain [needle exchange programs].”  In a study by Don C. Des Jarlais et. Al in the American Journal of Public Health, they found that over a 12-year period in New York City there was a decrease in new cases of HIV among injection drug users while the number of syringes exchanged in the needle exchange programs increased from 250,000 to over 3 million.

Needle exchange programs are cost effective programs to help reduce public risk.  The cost of treating a person with HIV is estimated at $190,000 according to the CDC.  There is another estimate of treating HIV patients from the US Conference of Mayors.  They estimated that the lifetime cost would be $120,000 from diagnosis to death.  The average city cost to run needle exchange program would be about $131,000.  Unfortunately, that current estimation might be understating it.  The needle exchange program would have to be expanded to provide adequate syringe coverage and would need to be expanded from its current setup.  Franklin Laufer in his article Cost-Effectiveness of Syringe Exchange as an HIV Prevention Strategy estimated that 87 HIV infections were averted as a direct result of the needle exchange program.

As previously mentioned, needle exchange programs do not only exchange clean needles for dirty needles.  97% of these programs provide public health services such as substance abuse treatment, counseling, sex education, HIV counseling and testing, tuberculosis screening, and primary health care.  Because of the various treatment and services they offer, they seem to be leading to a more conducive environment to reduce drug abuse.  The NIH found that needle exchange programs lead to a “reduction in risk behaviors as high as 80 percent in injecting drug users.”  In a Seattle study, they found that needle exchange participants were five times more likely to enter drug treatment than drug users who do not participate in the program.  Surgeon General Satcher concluded that needle exchange programs successfully refer clients into substance abuse programs.

Based on the evidence, needle exchange programs are a cost effective way to reduce the harm for drug users limiting their chances of contracting HIV, AIDS, or hepatitis while providing health care and substance abuse counseling for injection drug users.  There does not seem to be any scientific evidence that there is an increase in drug use because of these programs or that drug users feel more empowered to be able to use drugs because of these programs.  Absent substantial evidence that this is the case, we should be increasing federal funding for these programs and rescind the ban on purchasing syringes for these programs.  We should also be funding community outreach programs to work with local law enforcement, teachers, health care providers, and community activists to essentially help design needle exchange programs that are specific to each community.  The single biggest driver of success of these programs is the extent to which the community buys into the program.  Getting local organizers and activists to help design the program will help with the success of the programs.