Author Archives: Sheila

Incentivizing Appropriate Police Behavior

Many years ago, I spent three years heading up Indianapolis’ legal department. It was–among other things–my introduction to the way municipalities defended against (and far more often, settled) claims of police misconduct and/or brutality. I’d venture to say that very few taxpayers have any idea how costly those claims can be.

A recent post to Lawfare considered not only the dollars, but the sense.

On March 12, the City of Minneapolis agreed to pay George Floyd’s family $27 million for his wrongful death via the knee of a police officer. Despite being the largest pretrial civil rights settlement, it is only a fraction of the taxpayer money spent on settling police brutality. From 2015 to 2019, more than $2 billion, mostly taxpayer money, was used on civilian payouts for police misconduct in only the 20 largest police departments.

As the article points out, the way in which we currently address payouts for police misconduct operates to absolve officers from any financial culpability, no matter how egregious the behavior that triggered the settlement. This is mostly due to qualified immunity, which I have discussed previously. Qualified immunity is a court-invented doctrine that was originally intended to protect officers when they were acting in good faith, but actually ends up allowing police officers to escape civil liability for virtually any behavior, good faith or not.

While qualified immunity often shields government officials broadly from personal liability, it is particularly used with law enforcement. And though it is applicable only to civil proceedings, prosecutors, defense attorneys, judges and even jurors are often swayed during grand juries and criminal proceedings by the protection of qualified immunity.

Depending on the state, officers accused of misconduct might even keep their police pension and even be able to sue the municipality for back pay if they are fired and then found criminally not guilty. The money for civilian payouts for police misconduct does not come from police department budgets. Rather, civilian payouts overwhelmingly come from general funds, though some come from bonds and even insurance policies, particularly in smaller areas.

Between expansive doctrines like qualified immunity and a widespread social willingness to accord police officers–who have an admittedly difficult and dangerous job–the benefit of any doubt, holding an officer personally responsible for misconduct is an exceedingly rare event.

The Lawfare article suggests structural changes that would begin to redress the current imbalance. A number of legal scholars recommend abolishing qualified immunity, and there are other changes that would provide incentives for better monitoring of officer behaviors (and arguably, better training protocols) by police departments. They include moving payouts from city budgets to police department insurance policies and having individual officers carry liability insurance.

The costs of the current system are considerable, and it would be a mistake to shrug off the Chauvin settlement as an anomaly.

Besides the settlement for Floyd’s death, a series of notable civil settlements for police misconduct include $38 million in Baltimore County, Maryland, for the wrongful death of Korryn Gaines and the accidental shooting of her four-year-old son, Kodi; $20 million in Prince George’s County, Maryland, for the wrongful death of William Green; $12 million for the wrongful death of Breonna Taylor of Louisville, Kentucky; and $6 million in Cleveland, Ohio, for the wrongful death of 12-year old Tamir Rice, who was killed while playing with a toy gun in a park. All the people mentioned above are Black. These cases are not cherry-picked but, rather, are part of a much larger systemic problem in policing and municipal government. Black people are roughly 2.5 times as likely as whites to be killed by police. Blacks are 3.5 times more likely to be killed by police when they are not attacking or do not have a weapon relative to whites, like Floyd, Green and Rice. Black women are disproportionately more likely to be killed in their homes by police, like Taylor and Gaines.

There are also many incidents that do not end in death but will probably result in civilian payouts for police misconduct. Some of the most recent incidents include a five-year-old who was arrested and yelled at by police after leaving school in Montgomery County, Maryland, as well as Marion Humphrey Jr., a 32-year-old law student who was detained for more than two hours as state troopers in Arkansas searched his U-Haul. Humphrey, the son of a retired judge, has already sued the Arkansas State Police.

Reforming the way these settlements are funded would not only incentivize improved training, oversight and behavior, it would save taxpayer dollars that could be put to far more productive use.

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Structural Racism

Over the past several years, America has debated and (to some extent) confronted the extent of our country’s racism.The willingness of White Supremicists to make their animus explicit was triggered by the election of Barack Obama and evidence of shifting demographics, but we are still far from having a candid discussion of the ways in which that racism has infected the systems and structures of our society.

Far too many people think of racism as individual behaviors–the sorts of interpersonal  nastiness that goes viral after being captured by our ubiquitous iPhone cameras. Those of us who are white and middle-class rarely recognize the ways in which people of color have been systematically disadvantaged by official acts; I was shocked to learn about the federal government’s role in redlining from The Color of Law and similar books.

The Brookings Institution recently compared the treatment of South American immigrants with earlier treatment of immigrants from European countries. It was illuminating, to say the least.

Examining immigration policy through a systemic racism lens reveals that today’s largely Latino undocumented immigrants face far harsher consequences than white Europeans of years past for the same exact offense of unauthorized entry. A system that treats immigrants differently solely to their race is essentially the textbook definition of structural racism.

“Illegal” immigration was remarkably common in past decades. Around the turn of the century many Europeans came to the US “with a tag on,” a label sewn into their clothing to allow an employer or labor contractor who’d paid for the immigrant’s passage to find the newcomer at the dock on Ellis Island. While illegal—indentured servitude having long been outlawed[ii]–the practice was so widespread that one labor union official testified in 1912 that “more than 8 in 10” of the million immigrants who’d entered that year had a job waiting from an employer that paid for the newcomer’s passage.[iii] Others came as illegal stowaways aboard ships or unlawfully crossed the border from Canada, as CBS Evening News Anchor Nora O’Donnell recently discovered her Irish grandfather had done in 1924.[iv

According to the Brookings report, these “illegal” European immigrants faced few if any repercussions. In part, that was because there was little or no immigration enforcement, but even among those who were caught, few faced deportation. Migrants who entered unlawfully before the 1940s were protected by statutes of limitations and– in the 1930s and 1940s– by grants of amnesty. And before 1976, the government was extremely unlikely to deport parents of US citizens–the “anchor baby” accusation is a recent invention.

There weren’t restrictions on the ability of immigrants to access public benefits until the 1970s, and Brookings reports that it wasn’t until 1986 that it became unlawful to hire an undocumented immigrant.

In sum, from the early 1900s through the 1960s, millions of predominantly white immigrants entered the country unlawfully, but faced virtually no threat of apprehension or deportation. Businesses lawfully employed these immigrants, who were eligible for public benefits when they fell on hard times.

Times have certainly changed. Undocumented people today, most of whom are Latino and/or other people of color—are treated very differently. They enjoy none of the privileges  that were accorded to previous generations of white immigrants as a matter of course.

The toughening of immigration laws coincided with a shift of immigration from Europe to newcomers from Latin America, Asia, and Africa,[x] often in the context of racialized debates targeted mainly at Latinos. Researchers have documented how through the 1960s, racialized views of Mexicans shaped law and bureaucratic practice.

The report goes on to describe the increasingly draconian policies that followed the change in immigrants’ skin color. I encourage you to click through and read the entire, depressing  exposition.

Watching Derek Chauvin murder George Floyd was a horrific example of official disregard for the life of someone perceived to be different and thus lesser.  As a society, we need to send a message that such behaviors by individuals cannot be tolerated. But the larger challenge we face is the pressing need to ferret out the multiple ways in which similar attitudes have infected the structures of our laws and policies, and the multiple, less-visible ways those structures continue to harm not just the people being marginalized but also the country as a whole.

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It Isn’t Just Tax Rates

A new study has found that at least 55 of America’s largest companies paid zero taxes last year, despite making billions of dollars in profits. It’s infuriating.

As the New York Times reports, that 2017 tax bill eagerly passed by Republicans in Congress and signed with great fanfare by the former guy, reduced the corporate tax rate to 21 percent from 35 percent. On top of that gift,

dozens of Fortune 500 companies were able to further shrink their tax bill — sometimes to zero — thanks to a range of legal deductions and exemptions that have become staples of the tax code, according to the analysis…

Twenty-six of the companies listed, including FedEx, Duke Energy and Nike, were able to avoid paying any federal income tax for the last three years even though they reported a combined income of $77 billion. Many also received millions of dollars in tax rebates.

As Bernie Sanders has reportedly noted, if you paid 135 for a pair of Nike shoes, you paid more for them than Nike paid in taxes.

The Times article has a list of the most profitable companies that paid no taxes last year.

Publicly traded corporations have to file financial reports, and those reports include the amounts they’ve paid in federal income taxes. When challenged about their ability to avoid paying taxes, most respond that they “fully comply” with the laws. Which is undoubtedly true. (Okay, maybe not for those with accounts in offshore tax havens…Although that tactic is more common among filthy rich individuals than corporations…)

It’s relatively simply to “fully comply” with tax provisions (aka “loopholes”) that are  intended to encourage socially useful behaviors like investing in clean energy or modernizing aging equipment.

The $2.2 trillion CARES Act, passed last year to help businesses and families survive the economic devastation wrought by the pandemic, included a provision that temporarily allowed businesses to use losses in 2020 to offset profits earned in previous years, according to the institute.

Several of these deductions and credits are justifiable. Others, much less so.

I agree with Elizabeth Warren, who has been quoted as saying that giant corporations with billions of dollars of profit shouldn’t be able to pay $0 in federal taxes. According to the Times, today’s tax avoidance strategies include a mix of old standards and what the report calls “new innovations”. It’s hard to argue, for example, for the social benefit of allowing companies to save billions of dollars by characterizing the purchase of discounted stock options by their top executives as a loss, which they then deduct.

The Biden administration announced this week that it planned to increase the corporate tax rate to 28 percent, and establish a kind of minimum tax that would limit the number of zero-payers. The White House estimated that the revisions would raise $2 trillion over 15 years, which will be used to fund the president’s ambitious infrastructure plan.

Supporters say that in addition to yielding revenue, the rewrite would help make the tax code more equitable, requiring individuals and companies at the top of the income ladder to pay more. But Republicans have signaled that the tax increases in the Biden proposal — which Senator Mitch McConnell of Kentucky, the minority leader, called “massive” — will preclude bipartisan support.

Individual taxpayers have long had to contend with the Alternative Minimum Tax. That provision was created in the 1960s, with the goal of preventing high-income taxpayers from using various deductions and credits to avoid the individual income tax. There’s no reason why a similar mechanism shouldn’t apply to corporate giants using provisions of the tax code to avoid paying any taxes on massive profits.

Meanwhile, It would be illuminating if a Congressional committee were to examine the credits and deductions allowed by the current tax code, and eliminate those that no longer make much sense. (Some never did.)

If nothing else, it would be interesting to see how the Republican supporters of these provisions would defend them.

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I And We

The other day, someone posted the following to my neighborhood listserv:

“An anthropologist showed a game to the children of an African tribe… He placed a basket of delicious fruits near a tree trunk and told them: The first child to reach the tree will get the basket. When he gave them the start signal, he was surprised that they were walking together, holding hands until they reached the tree and shared the fruit! When he asked them why you did that when every one of you could get the basket only for him! They answered with astonishment: Ubuntu. ‘That is, how can one of us be happy while the rest are miserable?’ Ubuntu in their civilization means: (I am because we are). That tribe knows the secret of happiness that has been lost in all societies that transcend them and which consider themselves civilized societies.”

“I am because we are.” When you think about it, that’s pretty profound. In western cultures, it might be considered a way of understanding long-term self-interest.

The post especially resonated with me because I get so annoyed by all the evidence of very short-term self-interest displayed by people who clearly don’t understand how much they depend upon what I like to call “social infrastructure.”

I still recall a discussion with one of those “self-made”businessmen in which he insisted that anyone willing to work hard could succeed, that what I identified as barriers were really just excuses for sloth. I responded that, if that were the case, there evidently were no “hard workers” in the slums of India or Bangladesh. Surely, the rather obvious lack of social and physical infrastructure wasn’t their problem…

I don’t know what keeps so many people from understanding the various ways that social systems operate to enable or deter individual prospects. That “self-made” man was tall, White, college educated, with parents who had also been college educated (and at a very selective college). I assume his social circle simply didn’t include people without the means to access higher education, or people from “bad” neighborhoods or marginalized groups, and he obviously lacked the imagination and/or empathy needed to understand the realities of people unlike himself.

Are there lazy people in every society? Sure. Are there people who lack the skills and/or ambition to succeed (however one defines success)? Of course. In a functional society, the object should be to provide a floor, a starting-line beyond which individuals can go as fast and far as their talents take them. Equality of opportunity–not equality of result– is the goal, but equality of opportunity requires a reasonably level starting-place and an absence of invidious discrimination.

Think of life as a footrace.

If I’m running a race and several of the people competing with me are required to carry ten-pound sandbags on the run, I have an unfair advantage over them. If none of us are made to tote those sandbags, but contestants of color, or those with different sexual orientations or religions are only allowed to start the race five minutes after the rest of us, most of them will be unable to make up the difference.

Removing those impediments is no guarantee that everyone running will get to the finish line at the same time–or at all. But they’ll participate in a race and society that gives its citizens an equal opportunity to go as far as their individual gifts and hard work will take them.

And that takes us back to the insight captured by the post to the listserv: individuals do better, and are demonstrably happier, in a supportive society that looks out for everyone. In the long term, a fair and humane society is in our individual self-interest.

Ultimately, ubuntu is wisdom. Good people really cannot be happy in a society where substantial numbers of other people are miserable.

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An Inside Assessment

Those of us who are Democrats, ex-Republicans and/or Never Trumpers often encounter allegations of bias. The charge is that our criticisms are unfair to the GOP members of Congress–that we are exaggerating their flaws for political reasons.

John Boehner’s new book rebuts that accusation.

No one can accuse Boehner of being a “lib.” He was–for those who may have forgotten–the Speaker of the House when the Republicans controlled that legislative body, and his scathing description of its members rings true.

In the 2010 midterm election, voters from all over the place gave President Obama what he himself called “a shellacking.” And oh boy, was it ever. You could be a total moron and get elected just by having an R next to your name—and that year, by the way, we did pick up a fair number in that category.

Retaking control of the House of Representatives put me in line to be the next Speaker of the House over the largest freshman Republican class in history: 87 newly elected members of the GOP. Since I was presiding over a large group of people who’d never sat in Congress, I felt I owed them a little tutorial on governing. I had to explain how to actually get things done. A lot of that went straight through the ears of most of them, especially the ones who didn’t have brains that got in the way. Incrementalism? Compromise? That wasn’t their thing. A lot of them wanted to blow up Washington. That’s why they thought they were elected.

 Boehner quotes Ronald Reagan for the sentiment that getting 80 or 90 percent of what he wanted was a win, while the “new guys” wanted 100 percent every time. “In fact, I don’t think that would satisfy them, because they didn’t really want legislative victories. They wanted wedge issues and conspiracies and crusades.” When Boehner tried to get legislation passed, they considered him a sellout, a dupe of the Democrats, a traitor–a “liberal collaborator.”

Boehner pulls no punches when it comes to the hatred House Republicans felt for Obama.

What I also had not anticipated was the extent to which this new crowd hated—and I mean hated—Barack Obama.

By 2011, the right-wing propaganda nuts had managed to turn Obama into a toxic brand for conservatives. When I was first elected to Congress, we didn’t have any propaganda organization for conservatives, except maybe a magazine or two like National Review. The only people who used the internet were some geeks in Palo Alto. There was no Drudge Report. No Breitbart. No kooks on YouTube spreading dangerous nonsense like they did every day about Obama.

He’s a secret Muslim!”

“He hates America!”

“He’s a communist!”

And of course the truly nutty business about his birth certificate. People really had been brainwashed into believing Barack Obama was some Manchurian candidate planning to betray America.

Most of us saw that hatred, and understood the racism that motivated it. What was truly eye-opening, however, was Boehner’s description of Roger Ailes’ metamorphosis from a politically conservative media person to something else entirely.

At some point after the 2008 election, something changed with my friend Roger Ailes. I once met him in New York during the Obama years to plead with him to put a leash on some of the crazies he was putting on the air. It was making my job trying to accomplish anything conservative that much harder. I didn’t expect this meeting to change anything, but I still thought it was bullshit, and I wanted Roger to know it.

When I put it to him like that, he didn’t have much to say. But he did go on and on about the terrorist attack on the U.S. Embassy in Benghazi, which he thought was part of a grand conspiracy that led back to Hillary Clinton. Then he outlined elaborate plots by which George Soros and the Clintons and Obama (and whoever else came to mind) were trying to destroy him.

“They’re monitoring me,” he assured me about the Obama White House. He told me he had a “safe room” built so he couldn’t be spied on. His mansion was being protected by combat-ready security personnel, he said. There was a lot of conspiratorial talk. It was like he’d been reading whacked-out spy novels all weekend.

And it was clear that he believed all of this crazy stuff. I walked out of that meeting in a daze. I just didn’t believe the entire federal government was so terrified of Roger Ailes that they’d break about a dozen laws to bring him down. I thought I could get him to control the crazies, and instead I found myself talking to the president of the club. One of us was crazy. Maybe it was me.

The excerpt at the link also has juicy stories about Michele Bachmann and Ted Cruz, among others.

This excerpt from Boehner’s book demonstrates two things: (1) there were once sane Republicans who cared about governing (and knew how to spell it), and (2)the degree to which they have been replaced by members of the lunatic caucus.

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