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A Startling Truth: Pregnancy Discrimination on the Rise

By John Sherman

In 1978 the Pregnancy Discrimination Act was passed, protecting women from being fired or discriminated against due to pregnancy. Yet in 2016, the Equal Employment Opportunity Commission (EEOC) received almost 3,500 pregnancy discrimination charges. There were more cases of pregnancy discrimination filed in 2016 than in 1992. And those are just the cases that were filed, not taking into account the thousands of women who never moved forward with complaints. Startling, to say the least.

Pregnancy discrimination can take many different forms. In some cases, mothers return to work after their maternity leave ends only to find out they have been demoted or placed in a new position. In other cases, a woman is fired simply for announcing her pregnancy. That type of case seems almost too blatant. But shockingly enough, it happens. And then there are countless other situations of pregnancy discrimination that occur every day in U.S. companies.

What the Law Says

The Pregnancy Discrimination Act of 1978 was enacted to ensure that pregnant employees or “women affected by childbirth” are treated the same as childless workers. More recently the EEOC updated its expectations and guidelines to make clear that pregnant workers with a medical condition such as gestational diabetes, should be granted reasonable accommodation under the Americans with Disability Act.
Far too often, employers refuse to grant pregnant workers accommodations based on medical needs. A problem this recent update by the EEOC hopes to curb.

The “Motherhood Penalty”

According to the The Atlantic, “Studies from 2004 and 2010 have shown that mothers start at a lower pay than their coworkers, make less money over time, and they receive raises and promotions less often than their colleagues—that is, when they’re kept around.” Employers and co-workers also commonly believe, incorrectly, that mothers don’t work as hard and aren’t as capable as their male or single women colleagues.

“The “motherhood penalty” is alive and well. When sociologist Shelley Correll and her colleagues sent out more than 1,200 fake résumés to employers in a large Northeastern city, mothers were significantly less likely than either childless women or fathers with identical qualifications to get interviews,” said the Washington Post.

A University of New Mexico study, reported by NPR, found that moms earn 14% less than childless women. Women also fall short, across every sector, when it comes to occupying leadership positions. The bias towards working mothers and women is evident, yet the perceptions are unfounded. In fact, many studies have shown quite the opposite. A Federal Reserve Bank of St. Louis study concluded that mothers were actually more productive in their jobs than childless women.

In the News

It’s companies of all sizes and across every industry that are being accused of pregnancy discrimination. Since 2014, according to the EEOC, pregnancy discrimination resolutions have increased 17%. In the summer of 2015, AutoZone was ordered to pay an unprecedented $185 million in punitive damages to a former employee who claimed that after she became pregnant she was demoted, relocated and her wages cut. When she returned and asked for her job back her supervisor refused to promote her. Ultimately she was fired.

These types of situations are all too common. Unfortunately, many women don’t want to go through with a formal complaint or workplace lawsuit, which only perpetuates the situation and allows the mistreatment of pregnant women to continue and misperceptions of working mothers to prevail.

Why Many Women Don’t File Complaints

Unfortunately, many women don’t file complaints or stand up for their rights when faced with pregnancy discrimination. The reasons are many but the top 4 most common reasons women site are:

  • Feeling guilty
  • Believing that filing a law suit against their employer will ruin their career
  • An ignorance on the law
  • Don’t think they have enough evidence

While pregnancy discrimination filings are going up each year, the reasons listed above stop a large majority of women from moving forward with a complaint. For these women, the alternative is usually to either find a new job or accept an uncomfortable or hostile working environment.

If you believe you are being discriminated against based on pregnancy or because you are a mother, it is important that you stand up for your rights. Every time a woman speaks up, she makes it easier for other working mothers. And with pregnancy discrimination on the rise there has never been a more crucial time for women to stand up for their rights and fight back against discriminatory practices.

Sherman Law, PLLC, located in Portsmouth, NH, represents companies and employees in all types of employment-related matters, including claims involving sexual harassment, retaliation, wrongful termination, and discrimination.

 

Leo W Gerard: Another GOP Tax Plan For Captains

Donald Trump
Image by DonkeyHotey CC FLIKR

It’s based on the same voodoo economics we’ve heard many times before.

As he ran for office, Donald Trump repeatedly reminded audiences that he was “really, really rich,” but assured voters that as president he would be a working man’s champion, a blue-collar Superman.

He said he would stop corporations from offshoring manufacturing jobs with a border adjustment tax on imports. He would end trade cheating and declare China a currency manipulator on his first day in office. He would launch within his first 100 days a $1 trillion infrastructure improvement program to create millions of jobs fixing the nation’s airports, bridges and roads.

Trump’s record of promise-keeping to America’s working men and women in his first 100 days is this: So far, no good. The tax plan, well, the one-page tax sketch that the administration released last week is symbolic. While it would slash federal levies on fat cats and corporations, administration officials refused to say it would help the middle class at all. And it contains no border adjustment tax.

The tax plan rewards the captains of industry, the captains of Wall Street, the captains of real estate, like, well, like Trump himself. But the middle class, not so fast. The poor, not at all. Someone needs to tell Donald Trump that banksters and real estate tycoons sporting navy golf polos aren’t blue-collar workers. The tax scheme, like so many of Trump’s other pledges to workers, is a stab in the back of that indigo shirt.

On the campaign trail, Trump said rich people like him should pay more in taxes. Yet, the tax plan he offered last week would cut his taxes – by tens of millions a year. That’s because it would eliminate the alternative minimum tax. This is a levy intended to require billionaires like Trump to pay at least something after subtracting their multitude of special-rich-people deductions.

Trump has refused to release his tax returns – the first American president to keep them secret since Gerald Ford, who provided summaries. But Trump’s 2005 return, uncovered in part by a newspaper, shows that he had to pay $31 million as a result of the alternative minimum tax.

Trump’s plan also calls for eliminating the estate tax. That is paid only by people who inherit more than $5.5 million – as Trump’s children will. And it calls for cutting by more than half, to 15 percent, the tax paid by entities called pass-through corporations. Trump’s attorneys indicated in his presidential financial disclosures that his approximately 500 businesses are almost all pass-throughs.

Trump will be hobnobbing with his country club buddies in benefitting from this break. A 2015 study by the nonpartisan National Bureau of Economic Research found that the top 1 percent gets 69 percent of pass-through income.

Right now, a worker can’t get in on that low 15 percent tax rate unless reporting income below $37,950. But doctors and lawyers and investment bankers would get that special discount rate, no matter how much they make, as long as they pay a few bucks to establish a pass-through corporation. Trump’s plan would allow a lawyer paid $1 million a year to cut his taxes by $180,000 by setting up a pass-through.

Certainly, with all of those perks going to the nation’s most wealthy, Trump’s tax men would assure workers that they will benefit too.

Not really. When asked on ABC’s “Good Morning America” last week whether the middle class would pay more under the plan, Treasury Secretary Steven Mnuchin said: “I can’t make any guarantees.”

And the director of Trump’s National Economic Council, Gary D. Cohn, could not say how much of a break – if any­ – a middle-income American would get under the plan.

If it’s not absolutely clear who Trump’s tax plan would benefit, there’s also this from George Callas, the senior tax counsel for the Speaker of the House. Callas wants a permanent break for corporations, saying of a temporary one:

“It would not alter business decisions. It would not cause anyone to build a factory. It would just be dropping cash out of helicopters on corporate headquarters for a couple of years.”

Lots of small towns in Ohio, Michigan and Pennsylvania – towns that suffered when corporations offshored factories, towns that voted for Trump – would really benefit from cash dropping out of helicopters for a couple of years.

But that’s not Trump’s plan.

Trump’s money men, Mnuchin and Cohn, said slashing levies on the wealthy will pay for itself because giving the rich more cash will spur economic growth. So, no need to worry about Trump’s tax cuts ballooning the national debt, they assured.

This is called the Laffer Curve. Really.

Economist Arthur Laffer, an adviser to Trump, explained to the Washington Post last week that it works like this: “When you think about cutting that corporate rate, let’s say, from 35 to 15, that’s not going to cost you any money.”

He convinced the likes of Ronald Reagan and George W. Bush this hocus-pocus would work. And now, he has bamboozled Trump.

Both Reagan and Bush cut taxes. Both also left the country with larger deficits and uneven economic growth. Reagan raised taxes several times after his initial 1981 cut. Bush gave the country the Great Recession.

Laffer still insists his curve works, contending, “It’s a no-brainer.”

No. It’s voodoo economics. That’s what George H.W. Bush called it.

The Committee for a Responsible Federal Budget, a nonpartisan group that advocates fiscal restraint, estimated that Trump’s Laffer tax plan could reduce federal revenue by $3 trillion to $7 trillion over a decade. The economy would need to grow at a rate of 4.5 percent to make that proposal self-financing.

It grew at a pathetic 0.7 percent during Trump’s first quarter in office. In President Obama’s last quarter, the fourth of 2016, it increased at 2.1 percent. To rise at 4.5 percent would be phenomenal. Maybe paranormal.

Maya MacGuineas, president of the Committee for a Responsible Federal Budget, put it this way: “It seems the administration is using economic growth like magic beans: the cheap solution to all our problems.”

Ronald Reagan, who like Trump was adored by blue-collar workers, promised that benefits from his massive tax cuts for the rich would trickle down to the rest. That never worked. But now Trump is taking advice from the same Svengali and promoting the same flim-flam plan.

Those heartland workers can’t tolerate another hit. But it’s not just taxes. The health insurance proposal Trump is pushing would cost many low- and middle-income workers thousands of dollars more a year. Trump has proposed eliminating the Chemical Safety Board, which prevents workplace deaths. He delayed rules protecting workers from deadly silica and beryllium. He signed a law ending a requirement that large federal contractors disclose and correct serious safety violations. Trump has no federal infrastructure plan and reneged on naming China a currency manipulator.

These are all the actions of a president protecting the captains of commerce, not one championing blue-collar workers.

Global Asbestos Awareness Week Promotes Advocacy, Education

The first week of April is devoted to Global Asbestos Awareness Week, an initiative meant to educate people about the dangers of asbestos and the diseases related to its exposure. Launched by the Asbestos Disease Awareness Organization, the now worldwide event is in its 13th year and shines a light on the thousands of people diagnosed with asbestos-related diseases annually, while advocating for the ban of the substance in the United States.

Current federal regulations limit the amount of asbestos in newly-manufactured products to less than one percent, but the threat of exposure is still very real. Older homes may still contain asbestos used in various applications from tar paper and ceiling tiles to caulking. Public buildings, including schools and business offices, may also contain the material, which was used as an insulation because of its high resistance to heat and durability.
Roughly 60 countries worldwide, including the entire European Union, have asbestos bans in place. Late last year, Canada joined the ever-growing group, vowing to ban it by 2018. Although the material is considered safe when left alone, if disturbed asbestos particles can become airborne and enter the body through inhalation. Once inside, those fibers settle in the lungs, causing irritation and inflammation in the organ lining and eventually allowing tumors to develop. In other cases, the fibers may travel through the lymph nodes to other sections of the body, including the linings of the heart or abdomen. Several diseases are associated with asbestos exposure, including asbestosis and mesothelioma, an aggressive cancer that isn’t often diagnosed until its later stages. Because of the late diagnosis, most patients are given a prognosis of only 12-21 months.

Although anyone can be exposed to asbestos, there are several lines of work where exposure is more common due to where and how it was used. For example, a carpenter may become exposed to asbestos after disturbing some pipe insulation while remodeling someone’s basement. Military service members may have also been exposed while serving on Naval ships or maintaining aircraft. Even automotive workers face possible exposure through brake pad dust and clutch linings.

Late last year, the Environmental Protection Agency included asbestos on its list of ten chemicals slated for evaluation and potential banning under the Frank R. Lautenberg Chemical Safety for the 21st Century Act. Though a political sea of change has left the EPA in a tenuous position, there is still hope asbestos will be banned in the near future if the EPA is able to move forward and act on its findings.

The kicker to all of this is mesothelioma, asbestosis, and other asbestos-related diseases are completely preventable, especially when employees and homeowners take the necessary precautions to limit exposure and properly abate it when it’s found. Dozens of countries have already stepped up and removed the mineral from manufacturing and use, and the United States would be doing the right thing by following suit.

Rep Ellen Read: When will the House listen to NH?

The call to end the 2010 Citizens United Supreme Court decision—the decision that allowed an unlimited flood of corporate and dark money into elections by creating the shadowy “SuperPAC”, and declaring that corporations were people and that money was the same thing as free speech—has come before the NH House again for the third biennium in a row. The vote is Thursday.

In 2014 the NH House passed a bill to call upon Congress to end Citizens United, only to have it defeated by one vote in the Senate. In 2015, the Senate passed it unanimously, but the House, after miraculously overturning the committee recommendation to kill it and then actually passing it, in a very rare move decided to reconsider the vote and then defeated it.

This year, the House has already overwhelmingly passed HR 7, the “Real Reform Amendment”, calling upon Congress to make it so that only eligible voters in an election can influence an election with money—including both direct contributions and independent expenditures. Because one has to be an actual human being in order to vote (unless corporate America gets their way!), corporations, superPACs, and wealthy special interests would be automatically barred from contributing to campaigns or taking out independent ads (the “not approved by any candidate” ads that have become so ubiquitous since 2010). They could still organize their members within their organizations, of course. HR 7 passed with a hearty bi-partisan vote of 211-75.

Since 2014, 69 NH towns have each independently passed Town Warrant Articles and Town Resolutions calling upon the State House to pass a call for an amendment to deal with the corrupt Citizens United decision. HR 7 would certainly fit the demands of those 69 towns. The only problem with HR 7 is that it is a resolution, not a bill…which means that the Senate will likely refuse to hear it.

HB 116, on the other hand, will be heard by the Senate if it passes the House, because it is a bill. Unlike HR 7, it does not include specific language for a proposed amendment—it merely acknowledges the need for something to be done and creates four public hearings throughout the state, at which the residents of those 69 towns that have locally demanded this action as well as the general public, can submit official statements to inform our Congressional delegates of what exact language NH would support.

However, the highly partisan Election Law Committee, which has consistently voted on virtually every bill along party lines (including voting down a bill allowing senior citizens who do not have driver’s licenses to use the photo ID issued by their assisted living facility to vote, as well as a bill that would create a mathematical formula to determine the best district lines in order to prevent the egregious gerrymandering NH has seen under both parties), has, true to form, voted down HB 116…along the same party line vote as virtually every other bill.

Ninety percent of NH citizens, regardless of party affiliation, believe that money is corrupting our political process and is giving us “the best Congress money can buy”. In the presidential primaries, NH voted overwhelmingly for the two candidates that were viewed as an end to our current “pay-to-play” system, spawning national movements on both the left and the right that were fueled by an American people utterly sick of their government being bought and paid for. A recent 20-year study by Northwestern and Princeton has proven what Granite Staters have known all along: that while the will of wealthy special interests determines political outcomes, the will of the American public has “only a miniscule, near-zero, statistically non-significant impact upon public policy”. This is not the representative democracy we all were told America was meant to be.

How can the NH House in good conscience continue to ignore NH citizens when we are so fervently demanding action on the rampant corruption in D.C.? With the partisan committee recommendation to kill HB 116, it will be difficult to save it on the floor—but every representative who voted for HR 7 should logically vote for the much more modest and more effective HB 116. Passing it through both the NH House and Senate will make NH the 18th state (and last New England state) to call for such an amendment. NH has a chance once again to lead the nation in politics…this time in cleaning it up. And to the NH House I would say, “cleaning time has come!”

Justice and Injustice in the Big City – Part Two

(NB: This article was based on interviews with attorneys, court employees, police officers, defendants, and personal observations by this reporter in actual courtrooms and in the Philadelphia Criminal Courthouse. All names have been changed. Multiple real personal stories have been condensed to provide a hypothetical scenario where you are the defendant.)

You’ve rejected every plea deal. You’re one of the few cases that’s made it to trial. Your public defender has urged you to take the deal. You’re innocent, and you refuse. You’ve waited almost a year for this day, and you finally will be able to tell your side of the story. During that year, you’ve lived in constant fear. As a defendant on bail, even being pulled over for running a red light or being in the same room as a potential witness against you (even family members) could have landed you in jail with your bail revoked. The District Attorney knows this and is hoping you’ll do something – no matter how innocent it looks – to land you in jail and to limit your options. You never leave your house if you can help it. You miss weddings. Funerals. Family gatherings. Your heart races when you hear sirens going by.

But you’ve made it! You’re going to trial.

If you’re lucky, you’ve had a hour to go over the facts of your case the week before, and to prepare your testimony. Your attorney has a mountain of cases on their desk, and may even remember your name and what you look like on your trial date. By now the District Attorney’s Office has given your lawyer all of evidence they have against you – called “discovery” – and you’re confident that the evidence of your innocence that you’re collected will eventually exonerate you.

You get to court bright and early because your subpoena says you need to be there at 9:00 am. As I discussed in a previous column, that doesn’t mean your trial starts at that time. You go through the line, emptying your pockets and removing your belt to be run through a scanner. You walk though a metal detector, gather your things, and join the throng of defendants, police officers, witnesses, and attorneys jostling for a place in the elevator.

(Author’s note: If you want to be glared at by police officers, wear a press pass during this process.)

You get to the fifth floor, and enter your courtroom. Outside you may have seen the witnesses against you, but you quickly look away before anyone can unjustly claim you’ve intimidated them. You sit and wait for your lawyer to appear.

And wait. And wait. And wait.

Photo: Mark Dobbins

Real Scene: An Assistant District Attorney (ADA) hands a file to a police officer in the hallway of the courthouse that has the evidence that will be used against the defendant – including the arrest report. The officer “refreshes their recollection” by memorizing this report, and all of the other evidence collected since the arrest. This is information that the arresting officer could not have known at the time of your arrest. But they know it now, and the officer will “expand” their testimony to include language and this information that will be geared to ensure your conviction: “in plain view,” “furtive movement,” etc. The ADA goes over the officer’s testimony. In violation of the rules of criminal procedure, I observed one ADA say, “No, you want to say this,” and the officer repeated their planned testimony until the ADA was satisfied that they will say what the ADA wanted to hear to convict. I witnessed this myself just feet away from this pair with my press pass in plain view – and on other occasions. That’s suborning perjury – and it’s against the law.

Your case is called. You’ve elected for a bench trial, so the judge goes over your waiver of your right to a jury. You sit to the left of your lawyer, and start praying that not all of the witnesses show up. They do. Damn.

Real Scene: Jane is arrested in November of 2016 and charged with retail theft for forgetting to pay for a soda. Her family cannot afford the five-hundred dollar bail. She sits in jail. During her first hearing, the complaining witness fails to appear. The case is continued for another six weeks. Six weeks of no income. Six weeks where she rarely sees her children. The case is called a second time. Still no witness. Another six weeks of jail. Another six weeks of your public defender telling you that all Jane needs to do is sign this piece of paper and she can go home. She justs have to plead out. Jane refuses. During the third hearing the witness still fails to appear. The judge tells the ADA to either withdraw the charges or they will dismiss. They case is withdrawn. Jane’s processed and eventually released. Jane has lost her job. She’s lost her apartment and everything that she owns. All she has are the clothes on her back. Where does she go to get her life back? She can’t sue the District Attorney – under Pennsylvania law, they’re immune from that. She can’t sue the police. She’ll lose. With no apology and no offer of assistance Jane gets on the bus with her mother. Jane and her children can’t stay long at her mother’s apartment because it’s Section Eight – and there are limits as to who can live there. Jane has no job, no money, and about two weeks to figure something out before she ends up in a shelter. Over a can of soda that, in the haste of taking her children out for some pizza, she forgot to pay for. Jane breaks down in front of me and starts sobbing, “What do I do?”

The ADA calls the arresting officer. It’s clear to everyone in the room that they’ve been coached. Their answers use language and phrases that no regular person uses. It’s also clear that they’re lying. Yes, the police lie every day in court – hundreds of times. The ADA knows that they are lying and will put them on the stand anyway. The ADA will “rephrase” questions if they realize the officer has forgotten their pre-planned answers. Every person in the room knows that they are lying – and no one says a word.

Photo: Mark Dobbins

Your lawyer cross examines the officer, and tries to poke holes in their account. But it’s too late. The damage has been done. The judge believes their lies.

Fast forward: You’re found guilty.

Because you’re accused of a non-violent offense, and since you’re never been arrested before, you’re lucky. You’re later sentenced to two years probation, plus court costs. You’re a felon, but you get to go home.

Real Scene: Bob goes home and start talking to his family and neighbors. He’s heard something that stops him cold. His neighbor said that the DA’s office questioned them about his case, and they told the ADA that you were miles away when they say you committed the crime. But they never told your lawyer about that witness – and that’s what’s called a “Brady Violation,” after the case that said the prosecution must turn over all evidence about the crime – even evidence that may point to your innocence. Bob calls his lawyer, excited that his case may be overturned. That’s when Bob finds out from his lawyer that it doesn’t matter. Brady violations happen every day. Bob has one witness against the weight of the police and District Attorney’s Office. No one will believe him. Bob’s conviction stands.

At this point you’re wondering why this happens. How can the District Attorney’s Office get away with this? You’ve watched court dramas on television and that’s not what happens.

It happens every day.

When I planned this series, I was like you. I believed that the system was self-correcting, and that people who lie on the stand get caught, and punished. I believed that the District Attorney existed to charge bad people and to seek the truth. That the truth mattered above all. That there was justice.

Then I started talking to the people who work in the system. And I was shocked.

In Philadelphia, our District Attorney, Seth Williams, isn’t one of the good guys. For years people have noted his ethical lapses. Then this happened. He took money from tax cheats. He took gifts from people who had business before his office. The words “scandal” and “District Attorney” now are synonymous in Philadelphia. In any jurisdiction he’d be facing criminal prosecution. But in Philadelphia, he’s only looking at fines. He will walk away smiling.

And that’s wrong. I’ve called out our District Attorney for his ethical lapses. Like you, I expect out District Attorney to be ethical. To follow the rules. To be one of the good guys. To put justice above personal ambition. I posted one tweet calling for him to resign.

This was his response.

Photo: Mark Dobbins

In my next column, I’ll write about the wreckage this system causes. Lost jobs. Lost families. Lost homes. Lost hope.

Oddly enough. I have been called for jury duty this Thursday. Once my name is called – how long do you think until I’m shown the door?

Place your bets.

Justice and Injustice in The Big City — Part One

 (NB: This article was based on interviews with attorneys, court employees, police officers, defendants, and personal observations by this reporter in actual courtrooms.)

You probably watch “Law & Order.” Most people do. There you get to see the justice system chugging along like a sausage factory. The police think someone has committed a crime. A detective digs through the facts, interviews witnesses, and examines all of the evidence before going to a prosecutor to seek an indictment. The accused is brought before a judge in person to be charged in a wood-paneled courtroom, a defense attorney protests their innocence, the prosecutor must show what they have to indict, and if the judge thinks it’s more likely than not that a crime has been committed the defendant is charged, and a reasonable bail is usually set. The bail is paid, and the defendant is able to return to their life and assist in their defense. Their attorney has the resources to investigate the alleged crime, find exculpatory evidence, and go to trial. A trial eventually happens, all of the facts are put before a judge and jury, and if they are innocent, they will walk away full of puppies and rainbows – because the system worked. You turn off the tv basking in the glow of the American Justice System. All is right – or white – with the world, and you’ll sleep soundly knowing that the rule of law works for everyone.

That is a terrible lie. You’ve been suckered. That’s not what happens. It’s a fantasy. Let’s use the example of my hometown – Philadelphia.

So, the police hear that you’ve committed a crime. Maybe someone called in a tip. Maybe your neighbor was mad at you and wanted to get even. Maybe your girlfriend is mad at you. Maybe the police were simply bored and needed to look good to their commanding officer. They don’t investigate it. Based solely on a statement against you they go to the Charging Unit of the District Attorney’s Office and ask for a arrest warrant. They usually always get one. It’s a rubber stamp.

Handcuffs and a car (houstondwiPhotos mp FLIKR CC)

You’re arrested. You get put into a van and taken to a police station. You are scared. Nobody tells you what’s happening. Your things are taken from you. You’re photographed and fingerprints are taken. You may get an invasive body search. You’re led to a cell. If you’re lucky you get a few cheese sandwiches (one slice of processed cheese and two slices of bread) and water. You’ll have to ask (beg) for toilet paper. The cell will be filthy, the sink and toilet a horror show, and you’ll sleep on a hard metal bench with no pillow or blanket. There are cockroaches. There are rats. If it’s night time, the lights will remain on and it will be impossible to sleep. One person told me of police who enjoyed keeping a radio blasting gospel music all night at the cells because “Y’all need Jesus in your life.” Jesus is nowhere to be found. If you called The Hague you’d have a good case for a crimes against humanity charge.

Exhausted, you will suddenly be taken to a room with a monitor. You’ll be arraigned via closed-circuit television. No wood-paneled courtroom. No attorney by your side. In fact, you haven’t spoken to an attorney yet. You can’t utter a word during this arraignment. You begin to pray. You might cry. If you’re lucky you’ll get bail.

I hope you thought to bring change. If you did, you get one phone call to get someone to pay your bail. Do you remember their phone number? It may be late, and no one will answer. Too bad. It sucks to be you. If you get someone who can pay your bail, they have to travel to the bail payment window in a far away building to do so. Then you wait for the system to grind along before you’re released. The police won’t call anyone for you. Your partner is probably freaking out and has no idea where you are.

Huzzah! You got someone to pay your bail and you’re released! You get your things back. Never mind the money that’s missing from your wallet and the fancy watch that’s not on your property sheet, you’re free to go.

How will you get home? You’re in a strange neighborhood late at night. How will you explain it to your boss if your missed work? How will you afford an attorney? You probably can’t, so you’re assigned a public defender.

You get home. You are shaking. “How did this happen to me? I didn’t do it!” you’re asking yourself. You look at the paperwork and see that you’re expected to go to the Public Defender’s Office to discuss your case. You and your wife argue. Your children cry. The whole neighborhood knows by now that you’ve been arrested. They stare.

You lose another day from work to go speak to the public defender (do you still have a job?). You wait for your name to be called. You have about ten minutes to tell the harried public defender your tale of woe. They ask questions as if they assume you’re guilty. You can’t believe this is happening to you.

They suggest a deal right off the bat. They don’t have the time or resources to investigate every crime, and just want to clear their desk for more serious cases. They’ll urge in very strong terms to take a deal. In fact, 63% of cases in one year in Philadelphia ended in defendants taking plea deals. If every case went to trial, the system would collapse, and the system knows it. Forget your right to a trial and to confront witnesses against you. Take the deal, they urge.

But you didn’t do it! The public defender will not-so-patiently explain that innocence is not a defense. The deck is stacked against you. Take the deal.

You refuse, because you don’t want to be a convicted criminal. You’ll never find a good job or place to live with a criminal record.

Exasperated, the public defender prepares for a trial. During your first hearing weeks later (more lost work), the District Attorney calls their witness against you. They aren’t there. The case is continued for another month or so.

During the second hearing, the witness still doesn’t appear. It’s continued again. If you some much as look at anyone in the courtroom you are yelled at. You’ve been arrested – you must have done something.

Finally, at the third hearing, the witness shows up. But the ADA needs to collect more evidence. Another date is set. More missed work. More stress. More relationships under enormous pressure. Have you been evicted yet? At this point they’ve offered a deal more than once – they may even have lowered the charges to sweeten the pot. Your public defender begins to pressure you to take it. You still refuse – but you’re tempted because you just want it to end. All you have to do is sign this paper and it will all be over. You’ll probably argue that you didn’t do it.

It. Doesn’t. Matter. Your public defender gets angry but tells the ADA and the court you want a trial.

Courtroom Karen Neoh – Flikr CC

Fast forward a few months. The date is finally here, you’re going to trial! For the sake of brevity, let’s assume that you’re going with a bench trial – where a judge and not a jury decides your fate – because your public defender knows that this particular judge is fair. Many aren’t. Many have no criminal trial experience before running for judge (yes, ours are elected). You’re in luck because this judge was a criminal defense attorney and actually knows the law. Fingers crossed!

But wait. Your subpoena said you had to be there at 9:00 am. Where is everyone? If you were late you’d be in contempt of court, your bail could be revoked, and you’d in a lot of trouble. So you, your lawyer, the ADA, the police witnesses, the state’s witnesses, and a gaggle of court employees sit and wait. And wait. And wait.

Finally at 11:00 am the judge finally wanders in. They chat up the clerks. Two hours you’ve waited. An no one dares say a word of complaint to the judge. I asked dozens of attorneys to talk about this on the record. They were all afraid to – for fear of never being able to try a case and win again. But I did find one criminal defense attorney, Zac Shaffer, to explain the dire impact on these delays on defendants and the police:

“Consistent start times help defendants, witnesses and police officers. Defendants and witnesses may have a job to run back to. Many of these people are living paycheck to paycheck. An entire day off of work might mean a missed rent check or a utility turned off. Shaffer continued, “I have personally seen alibi witnesses with a  9:00AM subpoena leave court before testifying because they cannot miss a whole day of work and their case wasn’t even statused, let alone     started, until 11:00AM when the judge takes the bench. Oftentimes last out officers are in court after finishing a shift that started at midnight just to find out they are not needed for court at 10:30AM or 11:00AM. An earlier start time lets them leave to rest up for the next shift. Their job requires split second decision making where being rested can mean the difference between life and death.”

After waiting for hours, you have your trial. If you’re lucky, your public defender has prepped for the case. They may have spent an entire hour on it. Did I mention that because of the rotation system that this is your third/fourth/fifth public defender, and that they probably forgot what you even look like? Before the trial they’ll pressure you again to take the damned deal. You argue. This is the person who’s supposed to zealously defend you and they’re mad at you for making their life harder.

The trial goes on. It’s obvious that the police have been coached. I’ve seen this with my own eyes, as ADA’s hand the case file to them before the trial to “refresh their recollection.” They even have a tiny special room for this purpose. Their testimony sounds like a script – because it is. Shocker: the police are trained to lie. They do it every day.

After everyone’s testified and been cross-examined, and evidence presented, the state rests. It’s in the hands of the judge. You start praying.

Court Gavel (wp paarz – FLIKR CC)

You’re stunned. You heard “Not Guilty on All Counts.” You’re free to go. You shake hands with your lawyer and wander out into the sunlight. You might cry in the hallway on the way there.

You’re free!

No apology. No help getting home. No one will even acknowledge you. Your reputation is destroyed and there’s no one you can sue. No place to get your good name back.

You go home. A month later your bail check finally arrives. For one last insult, the court keeps 1/3 of your bail monies for “processing.”

You file the papers to expunge your record. If you’re lucky, the DA’s Office won’t fight it. This process takes months. Meanwhile, your record is still there for every employer to see – and good luck getting a job.

Your life destroyed and you have nowhere to turn for help.

Ok. You’re probably white and wondering how this applies to you. You think anyone who’s been arrested probably did something, and deserves to go to jail. You’ve never committed a crime. Or so you say.

Have you ever added up your checking account wrong and bounced a check? Have you ever forgotten to pay a parking ticket? Have you ever argued with your wife? Have you left home without your wallet and don’t have identification when you blow through a red light? Has someone ever stolen your identity? Can you prove you were home at 9:24 pm three months ago when your neighbor claims you stole their snowblower after the argument you just had over their dog?

Then congratulations! You’re going to jail!

Start carrying quarters. You’re going to need them.


(Part Two of this series, publishes on Feb 27th at 4pm, will be about the office that’s trying to put you away: the prosecutor. You won’t believe it until you read it.)

 

 

 

 

 

Mark Dobbins: “Dear Becky”

Singer and Songwriter Beyonce

Dear Becky:

I’ll wait while you put down your yoga mat.

You voted for Trump. After these past few weeks, I really have to ask, “What the hell were you thinking?” Seriously, Trump? The shouting guy on the TV?

I know, you were so concerned about those email servers. Do you even know what an email server looks like? And Benghazi! Find Benghazi on a map unassisted and I’ll eat a bug.

You overlooked the fact that he broke two marriage vows but somehow think he’ll keep his oath of office.

You overlooked his addiction to tweeting – and tweeting – and tweeting.

You overlooked a lot that would have set your hair on fire had President Obama done the same.

And because of you, every thinking person in this country is freaking out. But not you.

Because you are safe behind your yoga mat of white privilege.

You didn’t join the millions of people who crammed our streets to protest. Because you were busy. Because Emma had a lesson. Because Noah had a game. Because you had to get the oil changed on your SUV. Because you were busy being white. Because it doesn’t affect you – and it never has.

By now you’re sputtering, “But I have black friends,” “I’m not racist,” and my personal favorite, “I’m not privileged.”

Yes, you are. You’re privileged, and probably racist too. Most white people are and don’t even know it – or do, and don’t care.

Here’s a simple way I use to test white privilege. Can you go an entire day without interacting with a person of color if you tried? I’m betting the answer is yes. That’s the bubble of white privilege that you think will protect you. But it won’t. Not by a long shot.

So you want to keep those “nasty hombres” out of our country by building a wall? When the price of your food skyrockets because white folks won’t pick crops, you’ll care then. Because it affects you.

So you think by insulting foreign leaders our nation looks stronger? You equate shouting with strength – because you have always had the microphone and always think you will. How many times have you shouted “I want to see your manager,” when you didn’t get what you wanted, then, at that moment?Now Trump is the manager and there’s no one else to call.

So you think defunding Planned Parenthood will make abortions go away? When Emma comes home someday with bad news, you’ll always have a way to fix that problem. A poor woman’s abortion is Emma’s D&C. Most people won’t have those choices. But you will. That’s why it’s called “pro-choice.” Because we want the choices you have always had – and always will.

By now you’re probably angry and about to write something nasty in the comments section. I hope you do. I want you to be angry. As I promised in my first column, I’ll probably make you mad from time to time. This is one of those times.

But stop for a moment and think.

Could I be just a little bit right?

And could you be just a little bit white – and privileged?

Regards,

Mark

PS: We’ll talk more about this in the upcoming months. I’m just laying the groundwork for that conversation. I hope you’ll stick around.

(Featured Image: Katrina In Yoga Pose, by Earl McGee on Flikr CC)

Mark Fernald: How Do We Keep Guns Away From “Bad Guys”

“The only way to stop a bad guy with a gun is a good guy with a gun.” So said NRA President Wayne LaPierre just after the Sandy Hook massacre. If a ‘bad guy’ pulls out a gun and starts shooting, the only answer, according to Mr. LaPierre, is for someone to pull out another gun and take the ‘bad guy’ out.

The NRA and the Republican Party advocate what they call “Constitutional carry”—allowing anyone to carry a gun, openly or concealed, at any time and anywhere (excluding, one presumes, people with felony convictions). Republicans all over the country are attacking background checks, gun-free zones, and laws that require a permit to carry a loaded, concealed weapon.

The Democratic Party approach is different; it focuses on preventing people likely to misuse guns from getting them in the first place. The background check law has stopped over 1.5 million ‘bad guys’ from buying guns since 1994. That law passed after a Republican filibuster failed.

Unfortunately, our background check system has a couple of glaring loopholes. It does not cover sales of guns by unlicensed sellers at gun shows or sales between private parties, so any ‘bad guy’ who wants to buy a gun has an easy workaround.

Republicans have repeatedly blocked efforts by Democrats to require a background check for all gun sales. Republicans seem to value easy access to guns over a system that would keep guns out of the hands of felons and people with severe mental disabilities.

This is not about Constitutional rights. Background checks and concealed carry permits are Constitutional. In the case of District of Columbia v. Heller, the US Supreme Court ruled that citizens have a Constitutional right to keep and bear arms. Justice Scalia, writing for the majority, explained that the right to bear arms is limited: It is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Justice Scalia specifically referenced prior court decisions that upheld restrictions or bans on carrying concealed, loaded weapons.

For 94 years, New Hampshire has required a permit to carry a loaded, concealed weapon in a car or on your person. The permits are issued by the chiefs of police in each city and town. The law states that permits can be issued to “a suitable person to be licensed.”

Our chiefs of police have taken their responsibility seriously, seeking out the record and the reputation of those applying for a concealed carry permit. Sometimes an applicant is an irresponsible citizen who is not suitable for a permit: a person who has a history of getting drunk in bars and picking fights; a person who has threatened someone with a gun in the past, though never convicted of a felony; a person who has been involved in road rage incidents; a person who has been the subject of multiple domestic violence calls to 911.

Under current law, if a person has committed an act of violence below the felony level, it is legal for that person to have a gun at home. But if that person wants to carry a loaded concealed weapon in public, New Hampshire has a higher standard implemented by our chiefs of police.

The State Senate and the House have now passed SB12, which eliminates the requirement for a permit to carry a concealed loaded weapon. In the Senate, the ten Democrats were the only no votes. Thirteen Republicans voted yes. The vote in the House was nearly as lopsided. Only two Republicans voted no, and only ten Democrats voted yes.

The effect of SB12 is to remove the discretion of chiefs of police to deny permits. Republicans talk about law and order; they should trust the chiefs of police to exercise good judgment in determining who should be allowed to carry a loaded, concealed weapon. This is what Republicans and the NRA have now abolished.

The New Hampshire Association of Chiefs of Police spoke out against SB12. Their arguments fell on deaf ears. The Governor has indicated he will sign SB12.

If you have a chance to speak to your Representative or Senator or the Governor, ask these questions: Should an alcoholic with multiple DWI convictions be allowed to carry a loaded concealed weapon? How about the man who punched his neighbor during an argument? Or the woman who has been diagnosed a paranoid schizophrenic, and sometimes fails to take her meds?

Once Republicans have succeeded in passing SB12, almost anybody could be carrying a loaded, concealed weapon—even people with violent histories. And our only defense, in this Republican world, will be to avoid the first shot, and try to return fire.

 

Mark Fernald is a former State Senator and was the 2002 Democratic nominee for Governor. He can be reached at mark@markfernald.com.

Mark Dobbins: I’m Not Ready To Make Nice

As I sat down this week to write my first column, I wanted to make nice, I really did. In the wake of the disastrous first weeks of the Trump administration, conservatives across the political spectrum called for unity, saying “Give Trump a chance.” I was going write about how we can bridge the ever-growing divide that is tearing our nation apart. It was even going to be intersectional.

I had planned on listing what I, as a “big city liberal,” believed. I’m from Philadelphia, a predominantly Democratic city on the East Coast. We don’t always agree. Like most Democrats, we argue. But there are some things we do all agree on. Good paying jobs that let families do more than just survive. Not choosing between medicine for our children and paying the rent. An educational system that works. LGBTQ rights that let us live our lives without fear or prejudice. Police who don’t murder people of color and get away with it. Strong unions. Politicians that don’t pat us on the head while picking our pockets. We want to be happy. We’re not asking for special privileges – just the basic rights of “life, liberty, and the pursuit of happiness” we all learned about in school. That’s what I was going to write about.

Then I started covering the protests that swept Philadelphia and realized that the time for kumbaya was over.

Image by Mark Dobbins

I heard mothers tell me how, for the first time, they were afraid for their children. That a madman now controlled the White House, and instead of spending his time fixing our problems, takes to Twitter to call people names. Who hangs up on world leaders. Who tweets every time someone dares to disagree with him. Who needs a timeout.

I heard people of color tell me that this wasn’t new to them. America has always been and still is a racist country. It’s just come out of the closet for everyone to see. And now it’s respectable for white supremacists to sit next to the President of the United States without shame and whisper sweet nothings into his ear.

I heard my LGBTQ friends tell me how fear for their lives. Just a few years after we got the right to marry each other, we suddenly are afraid to hold hands in public. In Philadelphia.

Image by Mark Dobbins

I heard transgender individuals tell me how their friends are being murdered – daily – across this country, and how they wonder if they’ll be next.

I heard fear. But I also heard resistance.

I saw the crowds marching in the bitter cold to shut down the streets. The words they shouted differed from day to day, but the sentiment was the same – we will fight back. We will not allow this to happen – again. That our voices will be heard. That this isn’t the America we believed in – and that we want our country back.

In the upcoming months, I’ll be writing about those voices, and how they’re fighting. As a journalist, it isn’t my job to make people comfortable or happy, but to speak the truth. My columns may make you angry. Good. I hope that they do. I probably will poke a few hornets’ nests. I may get stung. I may sting. But I’ll always be honest with you.

All I ask is that you listen. Because, like the song goes, “I’m not ready to make nice.”

Leo W Gerard: Speak Loudly And Carry A Big Aluminum Bat

During this very month last year, aluminum smelters across the United States were closing, one after another. It was as if they produced something useless, not a commodity crucial to everything from beverage cans to fighter jets.

In January of 2016, Alcoa closed its Wenatchee Works in Washington State, costing 428 workers their jobs, sending 428 families into panic, slashing tax revenue counted on by the town of Wenatchee and the school district and devastating local businesses that no longer saw customers from the region’s highest-paying manufacturer.

That same month, Alcoa announced it would permanently close its Warrick Operations in Evansville, Ind., then the largest smelter in the country, employing 600 workers, within three months.

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Worker at Alcoa’s Warrick smelter in Evansville, Ind., before it closed in 2016. Photo by Steven Dietz, Sharp Image Studios, Pittsburgh.

Then, Noranda Aluminum fell. It laid off more than half of the 850 workers at its New Madrid, Mo., smelter in January, filed for bankruptcy in February and closed in March. The smelter was a family-supporting employer in a low-income region, and when it stopped operating, the New Madrid County School District didn’t get tax payments it was expecting.

This devastation to workers, families, communities and corporations occurred even after Ormet had shuttered a smelter in Ohio in 2013, destroying 700 jobs and Century closed its Hawesville, Ky., smelter, killing 600 jobs, in August of 2015.

It all happened as demand for aluminum in the United States increased.

That doesn’t make sense until China’s role in this disaster is explained.

That role is the reason the Obama administration filed a complaint against China with the World Trade Organization (WTO) last week. In this case, the president must ignore the old adage about speaking softly. To preserve a vital American manufacturing capability against predatory conduct by a foreign power, the administration must speak loudly and carry a big aluminum bat.

The bottom line is this: American corporations and American workers can compete with any counterpart in the world and win. But when the contest is with a country itself, defeat is virtually assured.

In the case of aluminum, U.S. companies and workers are up against the entire country of China. That is because China is providing its aluminum industry with cheap loans from state-controlled banks and artificially low prices for critical manufacturing components and materials such as electricity, coal and alumina.

By doing that, China is subsidizing its aluminum industry. And that is fine if China wants to use its revenues to support its aluminum manufacturing or sustain employment – as long as all of the aluminum is sold within China. When state-subsidized products are sold overseas, they distort free market pricing. And that’s why they’re banned.

China agreed not to subsidize exports in order to get access to the WTO. But it has routinely and unabashedly flouted the rules on products ranging from tires to paper to steel to aluminum that it dumps on the American market, resulting in closed U.S. factories, killed U.S. jobs and bleak U.S. communities.

2017-01-15-1484523553-9234624-Alumphoto3.JPG

Worker at Alcoa’s Warrick Operations in Evansville, Ind., before the smelter closed in 2016. Photo by Steven Dietz, Sharp Image Studios, Pittsburgh.

In 2000, China produced about 11 percent of the aluminum on the global market. That figure is now 50 percent. A big part of the reason is that China quadrupled its capacity to produce aluminum from 2007 to 2015, and increased its production by 154 percent.

When China threw all of that extra, cheap, state-subsidized aluminum on the global market, it depressed prices. In that eight-year period, the price sank approximately 46 percent.

To compete, American smelters tried cutting costs and getting better deals on electricity. But even as U.S. demand increased, U.S. production declined 37 percent. And capacity decreased 46 percent.

What capacity decrease means is closed plants. The number of smelters dropped from 14 in 2011 to five last year, with only one operating at full volume.

Many of these manufacturing workers, thrown out of their jobs by what is clearly unfair trade, saw President-elect Donald Trump as a champion. Donald Trump said he would hold China to account on trade. He promised he would impose massive tariffs on goods imported from China. He said he would confront Beijing on currency manipulation, a practice that makes Chinese goods artificially cheap.

Many of those manufacturing workers voted for Donald Trump. Monroe County, Ohio, is a good example. That was the home of the Ormet smelter. The workers, who belonged to my union, the United Steelworkers, and the company asked Ohio Gov. John Kasich in 2012 and 2013 to intervene with the utility to get lower rates to help Ormet survive.

Kasich refused. The smelter closed. Monroe County’s unemployment rate now is the highest in Ohio at 9 percent, nearly twice the national rate.

Monroe County voters didn’t forget. Theirs was among the counties in Ohio that went for Donald Trump in the Republican primary. Though Trump didn’t win the Ohio primary, he got 35.9 percent in the crowded GOP field, and he took virtually all of the places in Ohio that, like Monroe, would say Kasich and other politicians turned their backs on them.

President-elect Trump carried 29 of Ohio’s Appalachian counties in the primary, those described as “geographically isolated and economically depressed.” These are counties that, like Monroe, lost family-supporting jobs in steel, manufacturing or mining. For the workers who haven’t left, the jobs that remain, in retail and fast food, don’t pay much, don’t provide benefits and aren’t secure.

When Donald Trump came to town talking tough about China, that sounded a hell of a lot better to those workers than their governor telling them he wouldn’t help with electrical rates – especially after they watched the governor in New York work a deal to save an Alcoa smelter and 600 jobs for 3 years in Massena.

And, of course, Donald Trump won Ohio in the General Election.

Workers across America, from Sebree, Ky., and Mt. Holly, S.C., where Century smelters are threatened to Wenatchee, Wash., where Alcoa has held out the possibility that the smelter could be restarted, were galvanized to support Donald Trump by his promises to confront China on its predatory trade practices.  If he fulfills those pledges, he will have the back of the blue-collar workers who had his.

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Worker at Alcoa’s Warrick smelter in Evansville, Ind., before it closed last year. Photo by Steven Dietz, Sharp Image Studios, Pittsburgh.

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