Debtors' Prison Makes a Comeback

Debtors' prisons were outlawed early in the nineteenth century because people realized that debtors couldn't work and pay back their debts (or support their families) if they were behind bars. However, debtors' prisons may be making a comeback in the early twenty-first century. Newsweek published a short article this week entitled "The Return of Debtors' Prisons in Louisiana," by Joel Schectman. Schectman concluded that

[W]hile poverty is no longer a crime, at least not officially, two new studies suggest that the practice of locking up debtors is becoming more common. In separate efforts, the American Civil Liberties Union and Brennan Center for Justice at New York University spent a year observing court cases and interviewing hundreds of defenders, prosecutors, and the accused. The results, copies of which were released early to Newsweek, show a troubling pattern of incarceration in at least 16 states, where even minor, nonviolent offenses such as speeding and loitering result in prison time for the poor.

This is because courts fine poor defendants, "triggering an endless cycle of legal jeopardy." New Orleans Municipal Court is "particularly hard-nosed," according to Schectman, and jails indigent defendants who miss court dates; of the group studied, two thirds spent sixty days in jail. The same ratio was observed in Charlotte, North Carolina, although the number of days spent in jail was much lower.

The debate over bankrupty is sometimes colored by issues of morality--should people be allowed to walk away from obligations they freely agreed to assume? In this case, however, the issue is not morality but economics. As state funding for courts has dried up in the last few years, states have turned to fees as a way to pay for running their court systems.

In a memo obtained by the ACLU, the Michigan courts administrator is brutally clear, reminding judges of "tough economic times" and urging a "culture shift" toward pay-or-prison collection tactics.

In New Orleans, fee collection underwrites 40 percent of the costs of the city courts, and Judge Paul Sens says he's not running a debtors' prison but initially gives every defendant the option of community service. Clearly, however, many people who come before Judge Sens are being sent to prison. To me, this approach seems counterintuitive. It is by no means cheap to incarcerate people. To save money, it would seem to make sense to keep people out of prison. Furthermore, as was recognized in the nineteenth-century, people can't make money while in jail, further exacerbating their poor financial situation.

A New Approach to Newspaper Websites

The survival of newspapers in the digital age is a concern for anyone who values the analysis and critical commentary that a good newspaper offers. Raw, unfiltered news is widely and freely available on the Internet, and newspapers and other print publications are struggling to survive in a world where people are hostile to the idea of paying for news. How can newspaper websites generate revenue so that they can continue to employ the journalists who create the content? Rupert Murdoch has put many of his newspapers behind a paywall; it appears that The Wall Street Journal is thriving in the online environment (unique content?), while The Times of London has been less successful in attracting paying customers. For earlier OOTJ coverage of the Murdoch newspapers and their paywalls, click here. The New York Times is erecting a paywall that will go live in January 2011, and it's reasonable to assume that this experiment will be watched closely, especially since an earlier attempt at charging for the online newspaper was a failure that was abandoned rather quickly. No details about the Times paywall have been announced.

Today's Boston Globe is reporting that the Globe is going to try a different approach that will debut in the second half of 2011. Instead of having one site for all content, the paper is going to host two sites. Boston.com will remain a free site with "limited access to journalism" but with "breaking news, sports, and weather ... as well as classified advertising, social networking, and information about travel, restaurants and entertainment." The Boston Globe Lite? The new site, BostonGlobe.com, will be "designed to closely approximate the experience of reading the paper's print version [and] will contain all the stories and other content from the day's paper as well as exclusive reports, in-depth news, analysis, commentary, photos and graphics, plus video and interactive features." Subscribers to the print paper will have access to BostonGlobe.com for free, a model I wish other publishers would emulate. No price has been set yet for the digital-only subscription. To read the press release about the two websites, click here. It will be interesting to see how this new approach develops, and if it will generate enough revenue to pay for the Globe's newsgathering operation.

Blog Action Day 2010 is coming!

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The issue is Water -- Millions of people around the globe lack access to clean water.

Celebrate International Right to Know Day: Sept. 28!

C
Correction and apology: October 11, 2010: I received an e-mail from Daniel Metcalfe, the Director of the FOIA center at American University, below, Collaboration on Government Secrecy. When I first visited the site, I failed to notice a small white note in the lower center of their large dark blue center panel, just below the name block. The white letters simply spell "Continue." If the visitor presses that link, you then come through into the real meat of the site, which I missed on my first visit! I apologize, and am humbled. The site actually has a great deal to offer. If Professor Metcalfe's Dean's Fellow had not spotted this post and alerted him to it, we would have missed out on this site's value. There is an impressive list of relevant U.S. Code citations, which link the reader to the full text provided by govtrack.us, a non-partisan website which credits official and credible sites like Thomas and Legal Information Institute for bill and statute texts. There are also Attorney General Memoranda regarding FOIA, a report on how the Obama administration is doing on transparency, which includes lots of links to full text of Executive Orders, press releases, and many other texts. There are lots of reports from the Center itself on many aspects of government secrecy, documents from conferences and programs they have held. They have a list of amendments to the U.S. Freedom of Information Act (FOIA), with links to full text of the bills. And they have reports from their center analyzing the effects of each amendment. Each fall and spring, they issue a thumbnail of FOIA in the Supreme Court, and then provide links to any decisions of the Court, including Certiorari, Amicus briefs, briefs, and related articles analyzing the decision. There is a special analysis of FOIA post-9/11, focusing on non-Supreme Court litigation. They offer an analysis of National Security classification of government materials, organized by administration, looking as far back as F.D.R. The analysis is very in-depth. , and includes lots of full text links to official documents as well as to reports. There is a section on States Secrets Privilege, and another on Pseuosecrecy. And finally, a report looking at transparency worldwide. I apologize for giving such a very rich site short shrift!

FOIAdvocates.net is an international network of private individuals and organizations interested in freedom of information, transparency from governments:

The Freedom of Information Advocates Network (FOIAnet)is an international information-sharing network of organizations and individuals working to promote the right of access to information. Members of FOIAnet are civil society organizations with active programmes to promote the right to know. FOIAnet also runs a discussion list for news and debate on the right of access to information; there are currently over 400 people on this list, including CSO representatives and lawyers, academics, information commissioners and others with a specialised interest in the right to information. The network launched and promotes International Right to Know Day which takes place on 28th September of every year.

They list members from all around the world. And they have a fun world map with "push pins" showing the location of Right to Know Day events, on their home page. It only shows a few events in upper North America. One is happening in our building, and I was surprised to find it registered on their map. But there are dozens all through Mexico, Central and South America. There are a good few around Europe and into Russia, Ukraine, Bulgaria, a number in Bangladesh, and India, and a few scattered across Africa. None in the far East.

This website offers some resources, links to organizations' websites in various countries which vary a great deal in what they have available when you follow the links. It's worth exploring though. Sometimes, it's just a list of people studying the issue of government secrecy, as with the disappointing American link, http://www.wcl.american.edu/lawandgov/cgs/, "Collaboration on Government Secrecy," at American University. Some, like the Scottish link to University of Dundee, Centre for Freedom of Information, will eventually bring you to FOI Seminars, which has some reports that may be useful. Likewise, the Argentinan Unversidad de Palermo Centros y Programas de Investigacion, if you can read Spanish fluently, provides lengthy reports at the first link on the top left, written by law faculty members. The IST (Stockholm-based International School for Transparency)includes a link for a court decision out of South Africa about Zimbabwe, and a number of news reports. And the South Africa link, Open Democracy itself is a rich source, with links for legislation, information on recent litigation, training information and news, organized by topic. It's a bit of a come-uppance, actually, to realize that the U.S. site, rather like our current administration, which has trumpeted its "transparency," only to disappoint us in so many ways lately, is not all that informative about Freedom of Information.

Prosecutorial Misconduct

USA Today's article entitled "Prosecutors' Conduct Can Tip Justice Scales" makes for upsetting reading. The paper launched an investigation of "201 criminal cases ... in which judges determined that Justice Department prosecutors ... violated laws or ethics rules." The high-profile Duke lacrosse case demonstrated that prosecutors can badly overstep and misstep, but the USA Today investigation shows that the same abuses are rampant in the federal system. The consequences have been serious--"the abuses have put innocent people in prison, set guilty people free and cost taxpayers millions of dollars in legal fees and sanctions." One of my colleagues at Pace Law School, Professor Bennett L. Gershman, was interviewed for the USA Today story. He is a former prosecutor himself, having worked for the prestigious Manhattan District Attorney's Office for six years. Professor Gershman has written extensively about prosecutorial misconduct on both the federal and state level, and many of his law review articles are available by hypertext link from his faculty page (linked to above). According to Professor Gershman, the abuses detailed in the article are the "'tip of the iceberg' because many more cases are tainted by misconduct than are found. In many cases, misconduct is exposed only because of vigilant scrutiny by defense attorneys and judges." The article is accompanied by a compelling videotape that focuses on the case of Nino Lyons, who was incarcerated for nearly three years after a prosecutor failed to disclose exculpatory evidence; he was eventually declared innocent and released, but his life will never be the same. The prosecutor, Bruce Hinshelwood, was ordered to pay $1,111.80 in costs and to attend an ethics workshop, but stayed on the job until 2008 and has since opened his own practice. He was never punished by the Department of Justice or by the Florida Bar.

Jeffrey Toobin Analyzes Breyer's Impact on the Supreme Court

In the New Yorker for September 27, 2010, Jeffrey Toobin has a very lengthy essay on Stephen Breyer, considering his position on the newly reshuffled Supreme Court. Breyer has a new book out, Making Our Democracy Work. According to the blurb at the publisher's website, he surveys the history of the Supreme Court, looking at various times when the Court's rulings have been flouted or ignored, and then discusses what he believes the Court did to create public trust in its authority and what it must to do maintain that trust. The link provided here to the publisher's website also then leads on to an audio of Justice Breyer on NPR's "Fresh Air" radio show, but does not include any reviews of the book (see one here, from the New York Times Sunday Book Review, by Jeff Shesol, who was a speech writer for President Clinton).

Basically, Toobin sees Breyer as potentially a key deal maker now among the liberal wing on the Supreme Court. He notes how odd this is for a justice who is only liberal by contrast with the current court, or only liberal in certain senses. He also is a person who seeks compromise. An example of both tendencies that Toobin offers are the two cases that came before the Court. Could people put creches in a park and could they erect them in a courthouse? Four of the Court thought both were permissible and four of the Court thought neither was permissible. Breyer voted to allow the park and ban the courthouse display.

Breyer's passion is for administrative law, which is central to the gun control rulings of the last several years (District of Columbia v. Heller, 128 S.Ct. 645 (2007) and McDonald v. City of Chicago, (2009). See also Wikipedia, the end of the articles for helpful links McDonald and Heller.), as well as several cases that may be working their way up to the Court now regarding this administration's health care act. One key opinion is Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. ___ (2010) (Wikipedia entry so far is a stub, but it will grow with better links). This is the Sarbanes-Oxley case, and turns on matters of administrative law, which is Justice Breyer's passion, according to Toobin. Justice Roberts wrote for the majority, and Breyer wrote a passionate dissent, with Justices Stevens, Ginsburg and Sotomayor joining, that, with appendices, occupies more space than the majority opinion. The majority opinion finds the Sarbanes-Oxley Act (P.L. 107-204 and Wikipedia article for helpful links), to offend the doctrine of separation of powers because it "...withdraws from the President any decision on whether good cause exists. ..." for withdrawing Public Company Accounting Oversight Board members and instead vests that authority with Commissioners of the Securities and Exchange Commission.(slip opinion, majority opinion, at p. 14). After first noting that the question lies at the intersection of 1) Separation of Powers and 2) Who has power over Executive Branch officials, and the extent of that power. He states that neither text nor history, and perhaps no precedent helps with the resolution of question presented. He warns, quoting Justice Thomas from Chicago v. Morales, 527 U. S. 41, 106 (1999) that “this Court” is “most vulnerable” when “it deals with judge-made constitutional law” that lacks “roots in the language” of the Constitution (internal quotation marks omitted). (Breyer, Dissent, at page 6 in original slip opinion of Free Enterprise Fund)

Breyer urges the judiciary to concede to the superior understanding of, and capability to manage both administrative and political power of the other two branches of government. He notes the size and complexity of the federal government to explain the practicalities that drive the need and reasonableness of the delegation set up in the Sarbanes-Oxley Act. And Breyer also reports the voting both in the House and the Senate and the speed with which it passed, in the wake of the Enron scandal. He provides citations to many pieces of legislative history, (at page 10 of the dissent), from pages in the Congressional Record, to the Presidential Signing Statement and a report from the ABA (which seems to be no longer available at the URL cited).

In many ways, Breyer is, as Toobin's article comments, a classic "Roosevelt New Dealer," who sees the need for the government to regulate modern life, and takes a pragmatic, or "workable" approach to democracy, in which he sees the Supreme Court eschewing both trying to do amateur history for the sake of Originalism and trying to closely interpret the language of the Constitution. Breyer prefers taking a practical approach which often results in solomonic judgements such as the pair of cases described by Toobin involving creches in a public park compared with a courthouse. Breyer notes the "two layer" insulation between the President and the Board members in the Free Enterprise Fund case was inserted to protect the Board members' independence from political pressure, quite the opposite of the thinking of the majority, who felt that the President needed to be given back control. And Breyer would remind his colleagues on the Court that they are substituting their own judgement, (as lifetime appointees on the federal bench!) for that of the elected Congressional leaders (who were subject to their own electoral pressures from constituents) -- ironically enough, in this matter. (actually, OOTJ readers, this is Betsy inserting her own irony notice here).

But the most important part of Breyer's dissent comes at Section II D, pages 23 - 33, where he raises the specter of this decision unraveling the federal government's entire administrative structure, from court clerks, to administrative agencies to the very military itself. The majority opinion focuses on "inferior officers," without adequately defining the term for Breyer's administrative legal mind. Breyer combs earlier Supreme Court opinions and even a Justice Department Office of Legal Counsel Memo.

Reading the criteria above as stringently as possible, I still see no way to avoid sweeping hundreds, perhaps thousands of high level government officials within the scope of the Court’s holding, putting their job security and their administrative actions and decisions constitutionally at risk. To make even a conservative estimate, one would have to begin by listing federal departments, offices, bureaus and other agencies whose heads are by statute removable only “for cause.” I have found 48 such agencies, which I have listed in Appendix A, infra. Then it would be necessary to identify the senior officials in those agencies(just below the top) who themselves are removable only “for cause.” I have identified 573 such high-ranking officials, whom I have listed in Appendix B, infra. They include most of the leadership of the Nuclear Regulatory Commission (including that agency’s executive director as well as the directors of its Office of Nuclear Reactor Regulation and Office of Enforcement), virtually all of the leadership of the Social Security Administration, the executive directors of the Federal Energy Regulatory Commission and the Federal Trade Commission, as well as the general counsels of the Chemical Safety Board, the Federal Mine Safety and Health Review Commission, and the National Mediation Board. ... The potential list of those whom today’s decision affects is yet larger. As JUSTICE SCALIA has observed, administrative law judges (ALJs) “are all executive officers.” Freytag, 501 U. S., at 910 (opinion concurring in part and concurring in judgment) (emphasis deleted);...

And what about the military? Commissioned military officers “are ‘inferior officers.’” Weiss, 510 U. S., at 182 (Souter, J., concurring); id., at 169–170 (majority opinion). ... Numerous statutory provisions provide that such officers may not be removed from office except for cause (at least in peace time). See, e.g., 10 U. S. C. §§629– 632, 804, 1161, 1181–1185. And such officers can generally be so removed only by other commissioned officers, see §§612, 825, 1187, who themselves enjoy the same career protections.

The majority might simply say that the military is different. But it will have to explain how it is different. It is difficult to see why the Constitution would provide a President who is the military’s “commander-in-chief,”Art. II, §2, cl. 1, with less authority to remove “inferior”military “officers” than to remove comparable civil officials. ...

The majority sees “no reason . . . to address whether” any of “these positions,” “or any others,” might be deemed unconstitutional under its new rule, preferring instead to leave these matters for a future case. Ante, at 27. But what is to happen in the meantime? Is the work of all these various officials to be put on hold while the courts of appeals determine whether today’s ruling applies to them? Will Congress have to act to remove the “for cause” provisions? Cf. Buckley, 424 U. S., at 142–143. Can the President then restore them via executive order? And, still, what about the military? A clearer line would help avoid these practical difficulties.

The majority asserts that its opinion will not affect the Government’s ability to function while these many questions are litigated in the lower courts because the Court’s holding concerns only “the conditions under which th[e]se officers might some day be removed.” Ante, at 27. But this case was not brought by federal officials challenging their potential removal. It was brought by private individuals who were subject to regulation “‘here-and-now’” and who “object to the” very “existence” of the regulators themselves. Ante, at 33, 8 (emphasis added). And those private individuals have prevailed. Thus, any person similarly regulated by a federal official who is potentially subject to the Court’s amorphous new rule will be able to bring an “implied private right of action directly under the Constitution” “seeking . . . a declaratory judgment that”the official’s actions are “unconstitutional and an injunction preventing the” official “from exercising [his] powers.” Ante, at 10, n. 2, 6; cf., e.g., Legal Services Corporation v. Velazquez, 531 U. S. 533, 546 (2001) (affirming grant of preliminary injunction to cure, inter alia, a separation-of-powers violation); Youngstown Sheet & Tube Co., 343 U. S. 579 (same). Such a plaintiff need not even first exhaust his administrative remedies. Ante, at 7–10.

561 U. S. ____ (2010), BREYER, J., dissenting, at pp. 28 - 29, 30-32 of original slip opinion. Toobin characterizes this vision as a computer virus that would unravel the federal government.

The Toobin essay is a lengthy one, looking at Breyer as a jurist, and at his place in the Court. It considers how past justices who have become "great dissenters" have slowly become disenchanted and bitter as the years rolled by -- things I did not know about either Felix Frankfurter or Oliver Wendell Holmes, Jr., assuming that this is a correct characterization. But Toobin draws Breyer as an even-tempered and cheerful man, who resolutely remains up-beat even as he often is the lone writer of his dissent. He evidently find great solace in the popular books he has come out with, as well as his family. I hope he continues to be a happy justice. His attention to detail in the administrative law area is important, even if it is not glamorous.

Federal Reserve Statement on the Economy & a Translation

The Federal Reserve has issued a Press Release stating that the "pace of the recovery ... has slowed in recent months. ... the pace of economic recovery is likely to be modest in the near term." And then they tell you what the Fed's Open Market Committee has voted to do about it, and who voted how. It's all sort of confusing to read. So, for our benefit, Slate online magazine and NPR have cooked up a translation of the statement into plain English, with a nice toggle switch to flip back and forth between the official version and the Plain English. They had a bit of fun with it, which is good, because otherwise, it's kind of anxiety-inducing.

Lost Authors' Libraries

The Boston Globe Ideas section today features an interesting article on authors' libraries being dispersed, both during the authors' lifetimes, but most especially as part of estate settlement. Craig Fehrman writes, focusing largely on a recent case that came about most unusually. Annecy Liddell examined a used copy of a book at The Strand, a famous book store in Manhattan. As she paged through the book, she noticed that the previous owner had written his name in the front. Then she discovered that the owner had made marginal notes all through the book. She decided to buy the book anyway, and went home and looked up the previous owner on Wikipedia. She discovered that her book had been owned and annotated by a famous, though cultish novelist, David Markson, considered the most important experimental novelist in American fiction.

Ms. Liddell posted a note to her Facebook page about her discovery. And fans of David Markson stumbled on the note, deducing that Markson, who had died recently, had had his personal library dispersed to the Strand. The fans used Facebook and Twitter to coordinate their purchases at The Strand. They made notes of what they found and bought by Markson. They compiled lists of the books they managed to retrieve and swap scanned images of the pages with annotations, and stories of their adventures.

The author of this newspaper article explains that, though the fans of Markson were stunned that his annotated books should end up in the clearance bins at a bookstore, and scattered to the winds, to uncaring purchasers, that the "system" does not usually care about authors' libraries. Even authors themselves do not seem to care about keeping their libraries intact or passing their annotations along. In fact, Markson seems to have planned to have most of his 2,500 volume library sent to The Strand, where they had hosted many readings for him over the years, and he had sold off parts of his collection over the years to finance his life. Other authors who seem to be unconcerned about scattering their libraries include John Updike, who gave many of his books to church book sales, friends, and a nearby book store.

Samuel Clemens (Mark Twain), gave 500 of his books to help found the public library in Redding, Connecticut. And after his death, Clemens' daughter, Clara donated another 1,700 of his personal library books to that public library. Many of the patrons discovered Clemens' annotations in the books and began cutting the pages with his writing as souvenirs. But there were still many volumes with his notes intact. After the Redding Public Library weeded, and discarded many of Clemens' old volumes, a book dealer realized what he had, and academic libraries across the country managed to purchase the books. Now these libraries hold Clemens books with his marginalia, with purple library stamps marked Redding Public Library.

Starting in the 1950's scholars began to value the markings that some authors made in their books. For a few, more high profile authors, there are lists of books that once made up their personal libraries, and some scholars even try to figure all the books that an author may have read, whether they owned the book or not. There is one for Twain, for instance, created with enormous effort. Scholars sift through purchase receipts, library check out slips, diaries. Craig Fehrman asks, why not try to create the list before the library is dismantled? He answers that the estate handlers are often under great time pressure -- to clear out an office for the next tenant, for example. I suppose, they may not always know that the author will be interesting to posterity, either, though David Markson turns out to have told his children that he would become famous when he died and to hold onto a certain number of his books until after his funeral.

Quite an interesting article, and an interesting insight into writers and their pressures and quirks! As a librarian and a reader, someone who works with archivists and has been an English major, this was fascinating stuff.

Focus on Fonts

I first got interested in fonts when I took Professor Terry Belanger's course "History of the Printed Book" at Columbia University's School of Library Service in 1974. Professor Belanger devoted a large portion of the course to discussion of font design, and by the end of the semester, most of us could recognize the fonts used in early printed books and threw around technical terms such as "sans serif" with ease. This experience came back to me when I read in the Boston Globe an article on Matthew Carter, the "celebrated typeface designer." The article is accompanied by a short but informative video in which Mr. Carter discusses his work on the redesign of the Globe in 2000. The font he designed for the Globe, Miller Globe Text, is still being used today for the print newspaper; the online newspaper is produced using the Georgia font, which Mr. Carter originally developed for Microsoft. Another of his well-known designs is Verdana from 1994, "a revolutionary font for having prevailed over technical constraints of that time, like coarse computer screen resolution." Mr. Carter was involved from an early stage in creating fonts that would be easy to read on screen.

'For better or worse, I did get involved in this at an early age, and I do have a sense of being part of a continuum that's technical ... I've lived through the change from metal type to film to digital and from the desktop and to the Web to wherever we are now--I don't know--so I've had to adapt to these changes, and I've done so very readily, I've been glad to do that.'

Mr. Carter is going to be honored for his work next Friday by the Boston chapter of the AIGA, which is, according to its website, the "professional association for design." Matthew Bacon, president of the board of AIGA's Boston chapter, states that "honoring [Carter] is honoring the differences that design makes for the human experience."

For more information about Bitstream Charter, the font shown in the illustration above, click here.

Constitution Day

Whoops! OOTJ nearly missed celebrating Constitution Day, 2010! Tip of the OOTJ hat to William Hein, actually, for their little e-mail alert! Here is the Federal Register Notice of Implementation of Constitution and Citizenship Day on September 17 each year, in 2005.

The Assistant Deputy Secretary for Innovation and Improvement announces that, pursuant to legislation passed by Congress, educational institutions receiving Federal funding are required to hold an educational program pertaining to the United States Constitution on September 17 of each year. This notice implements this provision as it applies to educational institutions receiving Federal funding from the Department.

The federal law noted is Section 111 of Division J of Pub. L. 108-447, the ``Consolidated Appropriations Act, 2005,'' Dec. 8, 2004; 118 Stat. 2809, 3344-45 (Section 111). Here is a nice site with lesson plans and facts about the Constitution. Fox News actually has an informative story about the history of the bill and this holiday here. Apparently the late Senator Robert Byrd of West Virginia urged the passing of this law in 2004, though it had roots all the way back to 1940 when Congress created "I am an American Day" in May. In 1952, Congress repealed that earlier law and re-created the holiday as as Citizenship Day, on September 17. So, Senator Byrd's law, tucked into an appropriations bill I can't help but notice, adds two requirements to Citizenship Day:

* The U.S. Office of Personnel and Management will make available to all agency heads material to help educate all federal employees about the Constitution, particularly regarding its relation to the oath they take to uphold it; and

* Every educational institution receiving any federal funds must hold an educational program on September 17 for its students.

The image of the original Constitution is from http://www.archives.gov/exhibits/charters/constitution_zoom_1.html , the National Archives website.