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Justice
By Mark Ladov – 01/25/12
In last night’s State of the Union address, President Obama announced a potentially important new partnership between the federal prosecutors and state attorneys general who are investigating our nation’s mortgage crisis. Critically, the investigation will be chaired by New York State Attorney General Eric Schneiderman, who has spoken out on the need to hold banks accountable for predatory and risky practices, and who has used his office to help provide struggling homeowners with much-needed foreclosure prevention counseling and legal services. We applaud this move and will be watching closely to see that it succeeds in its promise of helping families and communities around the nation.
As the President explained: “I am asking my Attorney General to create a special unit of federal prosecutors and leading state attorneys general to expand our investigations into the abusive lending and packaging of risky mortgages that led to the housing crisis. This new unit will hold accountable those who broke the law, speed assistance to homeowners, and help turn the page on an era of recklessness that hurt so many Americans.”
This announcement offers hope that the long-delayed (and much-criticized) 50-state settlement talks over “robo-signing” by foreclosing lenders will be only a first step. The reported rumors surrounding the talks have suggested that a handful of major lenders (Bank of America, JPMorgan Chase, Wells Fargo, Citibank, and Ally Financial) would be required to contribute up to $8 billion for foreclosure prevention and refinancing efforts. This is in addition to setting aside $17 billion for principal reductions for underwater mortgages.
In exchange, the banks would receive waivers of liability for past unlawful practices. The critical question is how broad these liability waivers will be. If the banks are let off the hook, not just for “robo-signing,” but also for abusive and misleading practices in their loan origination and securitization, then there will be little leverage left to ensure future settlements that are better matched to the enormity of the current crisis. Attorney General Schneiderman has been a key critic of any deal that would let lenders off the hook, and his participation in this new effort is a positive sign.
President Obama also illustrated a keen awareness of the roots of this problem. As he said: “Let’s remember how we got here…In 2008, the house of cards collapsed. We learned that mortgages had been sold to people who couldn’t afford or understand them. Banks had made huge bets and bonuses with other people’s money. Regulators had looked the other way, or didn’t have the authority to stop the bad behavior.”
More than three years later, we are only halfway through our nation’s foreclosure crisis — but we have yet to see accountability for this misconduct. Instead, lenders have dragged their feet on helping to get borrowers back on track with their payments — despite the fact that foreclosure prevention will benefit families, communities, and the lenders themselves by helping the housing market to recover.
We need a serious investigation into the origins of this crisis. And we need federal and state authorities to leverage those investigations, and to press lenders to finally embrace the kind of large-scale modifications of failing and at-risk mortgages that must take place to dig us out of our economic malaise. We hope this federal/state initiative will help provide the leadership needed to steer us out of this crisis once and for all.
Tags: Justice, Civil Justice, Civil Legal Aid
By Mark Ladov & Neeta Pal – 01/20/12
Governor Cuomo got it exactly right in his State of the State address:
The financial crisis has taken a terrible toll on our state’s homeowners, forcing many out of their homes and putting many others at risk of foreclosure. Banks are unable or unwilling to renegotiate loans, and many of their foreclosure practices were questionable.
However, Governor Cuomo’s budget proposal failed to include a much-needed restoration of the $25 million appropriation for the Foreclosure Prevention Services Program that last year’s budget eliminated. This statewide network of housing counselors and legal aid lawyers has saved New York money by keeping families in their homes, and deserves the Governor’s support.
Foreclosures are devastating families and neighborhoods, particularly in low-income communities and communities of color. The foreclosure crisis is also dragging down our housing market. Financial analysts say that a strong response to help struggling homeowners is needed to lift our state and nation out of the current financial downturn. As Governor Cuomo declared, “We need to resolve this crisis so we can move on.”
Governor Cuomo’s budget proposal recognized that foreclosures are one of the critical issues facing New York State. Notably, he proposed the creation of a Foreclosure Relief Unit in the Department of Financial Services. This unit will focus on educating homeowners on the foreclosure process and its various rules and regulations, and will hopefully play an important role in mobilizing New Yorkers.
In addition, the governor should be applauded for proposing a judiciary budget that includes $25 million for civil legal services, a boost in state funding that will help ensure that general legal services are not further eroded due to sinking IOLTA funds and recent cuts to the federal Legal Services Corporation. Yet this $25 million is separate from what New York has been providing — and what is needed — to support the Foreclosure Prevention Services Program, which does not receive funding from the state’s judiciary budget, and which funds vital housing counseling in addition to legal services.
We have to tackle our state’s foreclosure problem on multiple fronts — by educating homeowners, but also by providing them with ongoing counseling and legal support. Since 2009, the Foreclosure Prevention Services Program has assisted more than 80,000 homeowners. The state’s $50 million investment in this program has saved New Yorkers billions of dollars by preventing families from slipping into homelessness, shoring up property values in struggling communities, and preserving our state's property tax base. This is money well spent.
Restoring the program’s funding is absolutely necessary to ensure homeowners have a voice in the foreclosure process — a judicial proceeding that is full of legal complexities. We urge Governor Cuomo and the state legislature to heed advocates’ call to restore the $25 million dedicated to housing counseling and legal services for New Yorkers at risk of foreclosure. As the Brennan Center has stated, this is a much-needed investment that will pay off for all of us.
Tags: Justice, Civil Justice, Civil Legal Aid
By Mark Ladov & Neeta Pal – 01/13/12
As our nation’s foreclosure crisis has deepened one critical response has been the expansion of mediation programs across the country. As the Department of Justice’s Access to Justice Initiative explained in a report released this week, "Foreclosure mediation is an important intervention that, if well-conceived and carefully implemented, can have overwhelmingly positive impacts on homeowners, lenders and investors, and communities." The report urges states and localities to evaluate and replicate successful mediation programs, and provides a strong framework for conducting such research.
Foreclosure Mediation: Emerging Research and Evaluation Practices highlights workshop participants' calls for the federal government to promote foreclosure mediation. Recommendations include establishing federal guidelines for foreclosure mediation programs; helping to fund state and local mediation programs; and requiring federally-backed loans to go through mediation as a condition of foreclosure. The report also emphasizes the need to evaluate what works in mediation programs, such as to mandate participation from homeowners. All of these strong recommendations would help to encourage greater responsibility and accountability among lenders and loan servicers who have too often raced to push homes into foreclosure rather than seeking creative solutions that would benefit homeowners and lenders alike.
The Brennan Center has studied the need for legal representation in foreclosure proceedings (including a report co-authored by Melanca Clark, who also co-authored this week’s DOJ release) and continues to advocate for legal representation for families in foreclosure. Recent data shows that homeowners often come to mediation without the benefits of legal assistance or other counseling. For example, in Franklin County, Ohio, 87 percent of homeowner cases scheduled for mediation did not have legal representation in 2009 and 2010. Without legal assistance, these homeowners are at a significant disadvantage to effectively navigate a system where loan servicers seem more eager to set up roadblocks than facilitate solutions.
Fortunately, many policymakers recognize the need for a greater investment in foreclosure prevention services such as legal assistance and counseling. Just this week, New York Attorney General Eric Schneiderman announced that he would direct $1 million in unused settlement funds toward foreclosure prevention legal services. We applaud this effort and urge officials in New York and across the nation to follow this example by providing adequate support for struggling homeowners. As we have stated, more needs to be done to invest in foreclosure prevention.
Encouraging mediation and investing in counseling and legal assistance pays enormous dividends by allaying the costs of foreclosures for families, communities and our nation’s economy as a whole. The Brennan Center will continue to press for access to justice in these cases, as a matter of fairness and due process, and as a necessary investment that will help all of us out of our current fiscal crisis.
Tags: Justice, Civil Legal Aid
By Roopal Patel & Meghna Philip – 12/22/11
If Lindsay Lohan can afford to pay more than $100 per night to stay in jail, so should anyone else who gets in trouble with the law, at least according to one California county official, Jeff Stone.
Last week, Riverside County, California initiated Stone’s plan to charge inmates $142 per night for being incarcerated in local jails. This is only slightly less than a one-night stay in Riverside’s finest hotel, which runs $190.
This jail stay fee is a short-sighted, fiscally insensible policy. The vast majority of those incarcerated will not be able to pay the fee. Celebrities like Lindsay Lohan are hardly representative of the majority of California’s jailed or imprisoned people, who are disproportionately poor. Stone himself has estimated that only about 25 percent of the county's prisoners would be able to pay anything at all if charged this new fee. The Sheriff's Deputy Chief of neighboring San Bernardino County said Stone’s estimate was high.
Under the ordinance, the county is allowed to garnish wages, put liens on people's homes, and charge parents if their children are jailed. Such financial consequences will push already economically struggling individuals further into poverty and have detrimental effects on the rehabilitation and re-entry of those involved in Riverside County’s criminal justice system.
In addition, there is evidence that instituting such fees may actually result in a net loss for state and local governments. In 2010, an investigative commission in Massachusetts demonstrated that the costs of adding a new jail fee in that state would far outweigh the benefits. The commission determined that the best fee system must track and determine an inmate's ability to pay, and that adequate development of tracking systems would be very costly. Considering the limited revenue that could be generated from an overwhelmingly indigent inmate population, as well as the socioeconomic costs of collecting from such a population, the commission decided not to implement the new jail fee. Such detailed cost-benefit analyses must be conducted before adding new fees that could be detrimental to both local budgets and inmates' rehabilitative prospects. Unfortunately, Riverside County has neglected such a process and implemented a fee that will likely cost more to track and enforce than any revenue it generates.
Riverside County's new policy illustrates how broken California’s criminal justice system is. In May, the Supreme Court found California’s state prison overcrowding unconstitutional, ordering it to downsize by 30,000 prisoners. In response, the state legislature approved a realignment plan to shift thousands of prisoners to local jails, stretching local resources to the limit and resulting in absurd policies such as Riverside’s new pay-to-stay fee.
But shifting the state prison population to local jails does not remedy the problem of prison overcrowding. California must focus its immediate energy on better long-term solutions to address the problems that led to its current state of overincarceration, such as scaling back its Three Strikes law, the toughest in the country. (Advocates are gearing up for a proposed ballot initiative to roll back the law next year.)
In the meantime, local jurisdictions must institute reasoned impact analysis when considering placing new debt burdens on the overwhelmingly poor population involved in the criminal justice system.
Tags: Justice, Criminal Justice, Fees & Fines
By Meghna Philip – 12/15/11
Last year, the Brennan Center published a comprehensive national report on the negative consequences criminal justice debt has on poor people. The report highlighted how underfunded criminal justice systems have sought to fill budget gaps by administering fees, fines and surcharges more and more aggressively, with less and less consideration of people’s ability to pay. Since the initial publication of this report, advocates around the country have mobilized around legal and legislative action to protect poor people from the unfair consequences of criminal justice debt.
Last week in Washington, D.C., at the National Legal Aid and Defenders’ Association (NLADA) Centennial Conference, the Brennan Center hosted a panel to highlight some particularly successful and inspiring efforts. The panel featured Nick Allen of Columbia Legal Services (CLS) in Washington State, Melissa Broome of the Job Opportunities Task Force in Maryland, and Carl Takei of the ACLU’s National Prison Project.
Nick Allen presented his organization’s successful pursuit of legislation for new waivers and reductions of interest on certain fines and fees. Interest on legal debt in Washington accrues at the high rate of 12 percent per year during incarceration, when prisoners are either unemployed, or making extremely minimal rates working inside prisons, and thus effectively unable to make payments. Before the legislation passed, one of CLS’ clients entered prison with $35,000 in debt. By release, his debt was more than $100,000 due to interest accrued. The new legislation allows a person to petition the court, after release, for a waiver of all interest that has accrued on their non-restitution legal debt during incarceration. The legislation received bipartisan support due to its potential for encouraging realistic payments of legal debt, reducing the costs of debt-related re-incarceration over time, and contributing to successful re-entry.
Melissa Broome spoke of the Job Opportunities Task Force’s efforts to pass legislation ensuring that existing statutory fee exemptions for poor parolees are actually enforced. In 2009, a Brennan Center report found that categorical exemptions put into place by the Maryland legislature to protect people who are unable to pay were largely inaccessible and unenforced. The legislature had vested the Parole Commission, a body with which parolees have little ongoing contact, with the exclusive authority to grant exemptions. The Commission routinely imposed the $40-per-month fee, without conducting evaluations of whether parolees should receive exemptions. Resulting debts led parolees to avoid meeting with their parole agents, which would then lead to parole violations and re-incarcerations, costly to the state. After significant advocacy efforts to highlight the negative consequences of inadequate fee exemptions, Maryland this year passed legislation to ensure that parolees are informed of and have better access to the fee exemption process.
Carl Takei outlined the ACLU’s litigation strategy to protect poor people from the rise of new debtors’ prisons in several states. This alarming practice violates the Supreme Court’s decision in Bearden v. Georgia, which dictates that it is a violation of the Fourteenth Amendment to jail someone who has failed to pay fines or restitution due to indigence. The ACLU’s report, In For A Penny, details its strategy of litigation and public education to put an end to this unconstitutional practice in Louisiana, Michigan, Ohio, Georgia and Washington.
Last week’s panel showcased promising examples of how to tackle reform in the creation and collection of criminal justice debt, and how to protect poor people from unjust consequences. A forthcoming Brennan Center report will highlight such stories, and provide further examples of achievable reforms that can be implemented across the country. As cash-strapped criminal justice systems continue to enhance debt collection, activists, advocates and policymakers must continue to fight penny-wise, pound-foolish practices and their disproportionate effects on poor people.
Tags: Justice, Criminal Justice, Fees & Fines
By Roopal Patel – 11/29/11
The foreclosure law firm of Steven J. Baum, P.C. is about to close its doors. Baum’s firm is a “foreclosure mill,” one of the largest law firms in New York State representing banks and financial institutions in foreclosure proceedings against homeowners. The firm recently came under increased scrutiny after Joe Nocera of the New York Times reported on a Baum firm Halloween party where employees dressed up as homeless people to mock those they had foreclosed upon. He followed this up by describing Baum’s foreclosure practices.
Baum’s firm was already being investigated for shoddy legal practices prior to the media attention. The firm had been under investigation by New York Attorney General Eric Schneiderman, the Department of Justice had investigated whether the firm had filed misleading or erroneous documents and required the firm to pay $2 million to the United States, and MFY Legal Services, which defends homeowners, filed a class action claiming the firm failed to file necessary papers. The end was in sight once Fannie Mae and Freddie Mac barred its loan servicers from referring new cases there.
Baum’s impending closure should be lauded as a demonstration that shoddy legal practices have consequences. Any organization that conducts legal work in an allegedly unprincipled manner cannot be entrusted with such high stakes work.
As one of the largest foreclosure mills in the state, Baum’s firm represented financial institutions in thousands of foreclosure proceedings. New York State authorities should monitor the foreclosure proceedings carefully to make sure the transition of Baum’s cases to new lawyers is a smooth one. Families facing foreclosure should not be stuck in a legal limbo or saddled with unnecessary fees and accrued interest due to delayed proceedings. There also should be no impact on homeowners’ ability to modify their mortgages.
The closing of Baum’s firm does not end the need for the New York State attorney general to remain vigilant in monitoring the fairness and legality of foreclosure proceedings originating from Baum’s firm — or for the other families who face the loss of their homes due to the foreclosure crisis at large.
The Brennan Center will continue fighting for adequate legal representation for those facing foreclosure, and urges Attorney General Schneiderman to continue its monitoring and investigation to ensure that homeowners are treated fairly. The lawyers representing the banks in proceedings need to be held to the highest ethical standards and understand the seriousness of the cases. The closure of Baum’s firm is one of many necessary steps in ensuring fairness and due process for New York’s homeowners.
Tags: Justice, Civil Justice
By Sarah Hook – 11/29/11
It has been nearly 50 years since the Supreme Court acknowledged in Gideon v. Wainwright that “lawyers in criminal courts are necessities, not luxuries.” The right to court-appointed counsel is now common knowledge, but the devil is in the details. When does this right attach? For some criminal defendants, it may be too late.
Recently, the Maryland Court of Appeals heard arguments in DeWolfe v. Richmond, in which the Brennan Center participated as a friend of the court. The case involves people who were arrested in Baltimore and detained after a bail hearing. Their requests for an attorney at this bail hearing were ignored. The circuit court ruled that they were entitled to an appointed attorney during the bail hearing because it constituted a “critical stage” in the proceeding.
The Maryland Attorney General is arguing that the initial bail hearing is not a critical stage for three reasons: the proceeding is not yet a “case” under the Maryland Public Defender Act, the hearing is not adversarial, and the lack of counsel is inconsequential because people facing criminal charges are only without counsel for 24 hours. This argument is flawed in each of its points, but more importantly, it demonstrates a disturbing disconnection from the realities faced by people going through the criminal justice system. It is only by elevating process over people that the Attorney General’s arguments are even plausible. A client-centered analysis of the situation reveals how correct the circuit court’s decision was, and why the Court of Appeals must affirm.
People arrested in Baltimore City are taken to Central Booking where charges are prepared and they wait to see a Bail Commissioner. The average wait time until a person is formally charged is 18 hours, during which the person is held in a crowded cell. It is difficult to tell a person who’s locked in a cage that they don’t yet have a “case.”
Viewed from the perspective of the accused, the proceeding is decidedly adversarial. The prosecutor sets out the probable cause for arrest and may request bail. The person then has the opportunity to argue against the prosecutor. Confronted with the authority of the Bail Commissioner and the charges arrayed against them, the accused are being forced to defend themselves against a powerful, professional adversary. Keep in mind that the average person accused of a crime does not have a high school diploma. These are exactly the kinds of circumstances where the advice of a lawyer is “a necessity.”
The Attorney General’s argument that bail hearings are inconsequential is laughably unrealistic. Twenty-four hours in jail is consequential for anyone who experiences it, as Judge Adkins pointed out during oral arguments. And people who can’t pay the amount set by the Commissioner must wait in jail until the next court session, which could be up to 30 days later.
Further, defense counsel is necessary at bail hearings to protect the accused and prevent prosecutorial overreaching. Without the advice of a lawyer, a person may reveal harmful or irrelevant information that could put their job, housing, or immigration status in jeopardy in ways that the right to counsel was designed to prevent. Since the Bail Commissioners are not required to have any legal training, the only lawyer in the room is the prosecutor. At this critical stage, the adversarial system is one adversary short.
The Sixth Amendment was not created to make the criminal justice system easier for the state to administer — it was designed to protect people. In holding that bail hearings are a “critical stage,” the circuit court correctly prioritized people over process. The Court of Appeals should affirm the circuit court’s decision and acknowledge that people have the right to counsel at the initial bail hearing.
Tags: Justice, Criminal Justice, Community-Oriented Defender Network, Indigent Defense Reform
By Kelly Williams – 11/04/11
Judge Diane P. Wood of the United States Court of Appeals for the Seventh Circuit delivered the 2011-2012 Brennan Center Jorde Symposium lecture at Berkeley Law School on October 26. Judge Wood has served on the 7th Circuit for 16 years, which at full strength has 11 judges. In her lecture, she shared her unique perspective on getting along, disagreeing and saving the disagreement for another day on the multi-member appellate bench. 
Judge Wood began with a wistful observation: “the district court judge is the queen, mistress of all she surveys.” Though the appellate court lurks in the background, only 14 percent of all district court cases are appealed, and estimates are that more than 90 percent of those are affirmed (she later quipped that another lecture topic might be “Why do litigants appeal?”). But the workload of the Courts of Appeals is still a heavy one: in 16 years, Judge Wood sat on 4,500 panels resulting in 2,569 reported decisions. In all, she has written separately 84 times, a ratio that is about average for Courts of Appeals decisions (3.3 percent of all federal appellate decisions include a separate writing).
More attention is paid to separate writings at the Supreme Court level: of the 75 Supreme Court decisions in 2010, 47 included dissents (38 were unanimous). At the Courts of Appeals level, the rate of dissent is much lower: 2.6 percent for all such decisions and 7.8 percent for published opinions.
So why does a Court of Appeals judge decide to write separately? Judge Wood began by recalling the words of her old boss, Justice Harry A. Blackmun, when he administered the oath of office to Judge Wood in Spider Lake, Wisconsin (his vacation home) many years ago:
“Even though you will sit primarily with two other judges, as you sit in groups of three on the federal appellate bench, your vote will essentially be yours, and not theirs. There will be moments of a feeling of reward and satisfaction, and moments with a feeling of disappointment, and certainly moments of loneliness, despite the fact that you have a multiple judge court. Because that vote is yours, and only you can make it. Don’t let it discourage you.”
Judge Wood described the many reasons that appellate judges might choose to write separate concurrences and dissent, and the good results that sometimes result from this extra effort.
But, Judge Wood pointed out, there are risks to parting with one’s colleagues to write separately: the risk that one might become known as the “perpetual dissenter” (she recalled Justice Brennan’s consistent dissent in every death penalty case that came before the Supreme Court); the risk that dissent might leave the public with the impression that courts can be scary political institutions, populated by people with strong opinions and lifetime tenure (citing Bush v. Gore); and the risk to interpersonal relations (Judge Wood quoted her colleague Judge Richard A. Posner, who compared serving on the Court of Appeals to “being married in a society that forbids divorce”).
Judge Wood finished with a comprehensive analysis of her own reasons for dissent over the years, noting some good outcomes (her dissent in United Phosphorous Ltd. v. Angus Chemical Co. was followed in a recent Third Circuit case, resulting in a split among the Circuits). But she also noted, “No one writes a dissenting opinion under the illusion that vindication is inevitable.” Her dissent in Crawford v. Marion County Election Board (in which the 7th Circuit upheld Indiana’s onerous election day voter identification requirement) did not prevent the Supreme Court from affirming.
The Brennan Center Jorde Symposium is an annual event, created in 1996 to sponsor top scholarly discourse and writing from a variety of perspectives on issues central to the legacy of William J. Brennan, Jr. A unique feature of the Symposium is that two prominent scholars are invited to give commentaries on the lecture. Judge Marsha Berzon of the United States Court of Appeals for the Ninth Circuit, and a former law clerk to Justice Brennan, was the first to comment. Judge Berzon noted that Judge Wood’s analysis was comprehensive and fascinating from her perspective as a judge from another Circuit, a useful addition to a body of scholarship she described as “what do judges think?” Judge Berzon discussed modern theories of collaboration and good decision-making, and compared them to the process that has evolved of judging on multi-member panels. The possibility of dissent and the process of adversarial collaboration are both bulwarks against cognitive fallacies, and Judge Berzon praised the common law judges from long ago who helped shape the current multi-member appeals courts.
Professor Kevin Quinn, of Berkeley Law School, admitted that he is a political scientist among the ranks of those who study judicial thinking and decision-making. He noted that scholarship about multi-member panels is in its infancy, most research having been focused on Supreme Court decision making or, even earlier, viewing judicial decision-making as a solitary process.
Part II of the Brennan Center Jorde Symposium will be held April 16, 2012 at New York University School of Law.
Photo 1: From right to left: California Law Review Editor in Chief Philip Tassin, Judge Diane P. Wood, Judge Marsha Berzon, California Law Review Brennan Center Symposium Editor Greg Miller.
Photo 2: Judge Diane P. Wood.
Photo 3: Judge Marsha Berzon.
Photo 4: Professor Kevin Quinn.
Tags: Democracy, Justice
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