Month: December 2016

James Mussenden could very well be the face of California’s municipal pension crisis. His friends seems to think so, at least.

Mussenden, the former city manager of El Monte, California, pulls down more than $216,000 in retirement benefits each year, along with free health insurance and the promise of annual cost-of-living increases. He’s getting two pensions—one from the city and one from the state—thanks to a loophole created in 2000 that allowed El Monte city employees to double-dip legally.

While Mussenden is living the good life—he recently took a trip to Scotland to play golf at the famous Old Course at St. Andrews, according to a Los Angeles Times piece published Friday—the city of El Monte and its 116,000 residents are struggling. More than a quarter of the population lives in poverty and the city government is groaning under the weight of pension bills that consumed more than 28 percent of the budget last year, giving El Monte one of the worst budget-to-pension ratios in a state full of municipalities with bad finances.

When Mussenden plays golf with his buddies—presumably not people who are on the low end of El Monte’s economic scale—he doesn’t talk about his pension.

“The guys I play golf with, they get very angry about my pension because they don’t have anything like it,” Mussenden told the Los Angeles Times.

Anyone who has been reading Reason or following state and local politics for the past decade knows all about the fiscal consequences of poorly run public retirement programs. Cities across the country are struggling beneath the cost of promises made to current and former employees. Some have entered bankruptcy to escape some of those bills, and others likely will.

There’s other consequences, though, and Friday’s Times story touches on one of them. Out of whack public pension systems essentially are functioning as massive wealth transfer programs, sucking tax dollars from private sector workers (who largely are responsible for funding their own retirements, too) and transferring it to retired public workers.

If pension benefits are in line with community norms, there’s little social friction. If Massenden was getting the same sort of retirement benefits as his golf buddies, for example, he wouldn’t worry about their reaction.

In El Monte, though, the system is broken. The median household income in the city is just $32,000, while Massenden and other former city workers are pulling down pensions in excess of six-figures. Harold O. Johanson, another former city manager profiled in the Times story, gets $250,000 in annual benefits. Since retiring at age 58, he’s earned $3 million in pension benefits.

Unlike most cities in California, where public employees pay between 7 percent and 9 percent of their paychecks into the pension system, El Monte has covered those costs for employees since the 1980s, the Times reports. Public workers there have not had to contribute a dime to the pension system in order to get these lavish benefits (while most private sector workers contribute at least 3 percent to 401(k) plans and other investments).

No wonder Mussenden’s golf buddies are mad. Everyone should be mad about that.

Imagine being treated the same way a person arrested for a felony is treated—brought into jail, strip searched, imprisoned—even though you aren’t arrested. Worse yet, imagine being treated that way because you might have been a witness to a crime and police wanted to interview you.

That’s exactly what had been happening down in Louisiana in Evangeline Parrish (population 33,500) and its town of Ville Platte (population 7,300). According a long-term Department of Justice investigation that was just released in December, police and sheriff’s offices there had a long-established practice of jailing people for days without charges or warrants as “investigative holds.” The practice is extremely unconstitutional but apparently had been policy.

Police held people for days without charging them with crimes, but often suspected them of having committed crimes. According to the DOJ report the detention was partly because the police thought these people were guilty of something but lacked actual evidence, so police used the opportunity to keep them behind bars while they looked for something to hit them with. They were forced to sleep on the floor in jail and were not allowed to contact the outside world and let people know what had happened to them. They were essentially “disappeared” by law enforcement officials:

Investigative holds initiated by [Ville Platte Police Department] VPPD often last for 72 hours—and sometimes significantly longer—forcing detainees to spend multiple nights sleeping on a concrete floor or metal bench. Indeed, VPPD’s booking logs indicate that, from 2012-2014, several dozen investigative holds extended for at least a full week. During this time, VPPD exerts control over the detainees’ liberty: The detained person is not permitted to make phone calls to let family or employers know where they are, and have access to bathrooms and showers only when taken into the jail’s general population area.

Similarly, [Evangeline Parrish Sheriff’s Office] EPSO’s investigative holds often last for three full days. During that time, detainees are forced to sleep on the Parish Jail’s concrete floor. One EPSO deputy reported that he saw someone held without a warrant or a probable cause determination for more than six days. As with VPPD, EPSO also controls the detainee’s liberty. EPSO does not permit detainees who are “on hold” to make phone calls to let family or employers know their whereabouts. Indeed, we were told that certain detectives have threatened EPSO jail officers (referred to as “jailers” in the Parish Jail) with retaliation if the officers allowed detainees to make phone calls. One EPSO jail officer described an incident in which an EPSO detective reprimanded him after the jail officer provided toothpaste and other personal supplies to a person locked in the holding cell.

These investigative holds are not even ostensibly supported by probable cause. Both EPSO and VPPD detectives acknowledged that they use investigative holds where they lack sufficient evidence to make an arrest, but instead have a “hunch” or “feeling” that a person may be involved in criminal activity. One VPPD officer noted that they use investigative holds specifically where the officer needs more time to develop evidence to support a lawful arrest. Similarly, an EPSO detective described using investigative holds when he had “a pretty good feeling” or a “gut instinct” that a certain individual was connected to a crime.

The DOJ report goes on that it was not just suspects who were treated this way. They even locked up people they thought might be witnesses to a crime, meaning just about anybody could have been subjected to this treatment:

For example, one woman told us that VPPD officers detained her and her family in 2014 after a grocery shopping trip during which they may have witnessed an armed robbery and shooting. The woman was on her way home with her groceries when a VPPD officer stopped her. She told the officer that she did not see the robbery and that she had no information about the crime. After she got home and dropped off her groceries, another VPPD officer came to her house and commanded her to come to the police station to answer questions. The woman recounted—and Chief Lartigue confirmed—that the officer took the woman, her boyfriend, and a 16-year old who was staying at their house into custody at the jail. Officers strip-searched the woman, who was menstruating at the time, and forced her to remove her tampon. VPPD officers then placed her in custody overnight—first in a holding cell and then in the Jail’s general population—without access to sanitary products. According to the woman, roughly nine hours later, VPPD detectives removed her from detention to question her about the shooting. The district attorney participated in this interrogation. VPPD officers also held the woman’s boyfriend overnight in a holding cell, and held the juvenile in a separate holding cell for at least seven hours before releasing him to a family member. None of these individuals were suspected of having any connection to the robbery or shooting, yet detectives incarcerated them for significant periods of time before showing them a line up and asking questions about what they may have witnessed. The day after being released, the woman called Chief Lartigue to complain about her treatment. Chief Lartigue responded that the detention was pursuant to department policy.

Another woman was detained with two small children and kept in holding cells (the kids were eventually released to family members) for questioning about an armed robbery. She spent days in custody without being charged but also not being permitted to leave. Eventually after 72 hours they charged her with armed robbery to keep her in custody. Local media reported the arrest, but the charges were subsequently dropped and she told the DOJ that she still has no idea why the police ever charged her in connection with the case.

The DOJ details the constitutional problems and Fourth and Fifth Amendment violations—which should be obvious even to laypeople—with the detentions. There was no judicial review. No magistrate was evaluating and ruling on the probable cause to hold these people, because clearly there often was none. If police brought these people before a judge they’d be ordered to let them go. The police were also using the detentions to interrogate and get incriminating statements from those they’ve snagged in order to try to get convictions, but given that the detentions were unlawful, any confessions would run up against Fifth Amendment protections against compelled self-incrimination.

Unfortunately, the report notes, the record-keeping with these law enforcement agencies was poor enough that they were unable to evaluate the extent of the consequences of this. That is to say: They have no idea how many people were either convicted or pleaded guilty to crimes based on information or confessions the police gathered illegally or whether they’ve sent innocent people to prison because of it. The DOJ does have “grave concerns” that these detentions have led to wrongful convictions.

Apparently the law enforcement agencies involved are cooperative with the DOJ’s investigation and the report concludes with calls for a court-enforced reform program to, among other things, teach police that you can’t just put people in jail cells while you investigate them. The Civil Rights Division of the DOJ is prepared to sue if they can’t reach an agreement with the law enforcement agencies involved.

Read the report here. And before thinking to yourself “Oh, those racist Southern towns and their Boss Hogg sheriffs,” remember that what this report describes is eerily similar to the practices Chicago Police have just as recently been accused of at Homan Square.

Is a new Missouri law really about to turn schoolyard fights into felonies?

That’s what a number of high-profile news outlets have reported, prompted by several school districts issuing dire warnings over several new statutes in the state’s criminal code set to go in effect on January 1, 2017 which “may have a drastic impact on how incidents are handled” in Missouri schools. Ferguson-Florissant Superintendent Joseph Davis even posted a Youtube video warning students and parents that “a simple fight may follow you for the rest of your life.”

At issue is the language defining third-degree assault, which could make a felon out of any person if that person “knowingly causes physical injury to another person.”

Another issue concerns the newly defined fourth-degree assault. Thanks to an anti-bullying law already on the books, bullying on school grounds “including gestures, or oral, cyberbullying, electronic, or written communication,” are considered harassment and must be reported by school authorities or school resource officers (SROs). The new definition of fourth degree assault could lead to such harassment being prosecuted as a felony.

The well-publicized fear is that the new statutes could mean a simple scrum at the bus stop, or a hyperactive kid pulling another student’s hair, could imbue children with the stain of serious criminal charges from which they can never make themselves clean.

Reason has long covered the increased use of SROs, which are uniformed police officers assigned to schools, and how their very presence in institutions of learning inevitably leads to an overcriminalization of minor infractions (like treating farting in class as an actual crime) and disproportionately sends lower income and minority students into the school-to-prison pipeline.

But a closer comparison of the new Missouri law with current state law reveals little will change in how school violence is prosecuted. In fact, it may actually be the case that school fights will be less likely to be prosecuted as felonies than they were before.

St. Louis Public Radio reports that it is already a felony in Missouri to “knowingly cause physical injury on school property.” However, the new law replaces the previous statute which has specific language regarding violence on school grounds.

Amy Fite, president of the Missouri Prosecutors Association, told St. Louis Public Radio:

“Despite some news stories to the contrary, the revision actually narrows the instances in which routine assaults will be considered felonies,” Fite said. “It doesn’t expand it.”

“Currently an assault on school property is an automatic felony, and so it’s not the conduct that makes it a felony, it’s the location where it occurs,” Fite added.

Elad Gross, a former Missouri assistant attorney general and current President and CEO of Education Exchange Corps, wrote in a blog post that he worries the narrative being spun by the media coverage of the new laws is both misleading and will ultimately harm the very students most at risk:

These stories have taken advantage of a group of folks who are subject to grave inadequacies in our judicial system. There is no question that far too many kids are caught up in a system that too often does not treat them fairly. But, instead of talking about the real issues underlying the school-to-prison pipeline, these media outlets are inciting panic, which will inevitably dissuade folks from joining an important fight when they realize this story of terrifying change actually has no merit.

The more the boy cried wolf, the less people listened.

In a phone interview with Reason, Gross says the new definition of third degree assault “deletes any reference to schools.” This means that under the new statute, two drunks who get into a fistfight at a hockey game could be prosecuted for third-degree felony assault, which is not the case under the current statute. Gross added that the new statute also sets a higher standard for the definition of “physical injury.”

Writing in The St. Louis American, Gross says he spoke with (among others) prosecutors, the St. Louis County police, and the St. Louis City’s Juvenile Office and came to the conclusion that the confusion over the new laws likely began with a miscommunication between the Hazelwood School District and local law enforcement over how the new statutes would be applied. Gross writes that this led to the school district issuing its warning over the new statutes to parents and students just before the holiday break. From there, the story took off in the media with the narrative that misbehaving Missouri kids were suddenly at risk for prison.

Gross concedes that confusion abounds because of “inaccessible, hard to follow, not very intuitive” language in the laws, as well as the fact that the new, lower charge of fourth-degree assault replaces much of what was previously defined as third-degree assault, which creates the impression that third-degree assault now carries harsher penalties for students. Gross tells Reason, “The new law isn’t going to be changing much, but that doesn’t mean the old ways were super great.”

Part of this is because schools that employ SROs—which are typically higher-risk schools—don’t have the same leeway as other schools to impose discipline for scuffles or other altercations between students. If an SRO witnesses an incident, the officer has to intervene, which greatly increases the chances of criminal charges being filed against a student.

Ultimately, the issue of overcriminalizing kids isn’t going to be solved by Missouri’s new statutes, but it certainly doesn’t appear to be a deliberate or even indirect attempt at making it easier to create felons out of wayward students.

Mother Jones writes, “It’s not easy to evict someone in California… Generally that’s a good thing.” But many people who read the article in which this claim appears may reach a different conclusion.

Elizabeth Abel, an English professor at the University of California-Berkeley, rented her two-bedroom home to David Peritz, who teaches at Sarah Lawrence College. Abel didn’t bother to ask for references or do much research on her prospective tenant, according to Mother Jones: the fact that he was an academic was essentially good enough for her.

Her trust was misplaced. Peritz failed to pay rent on time, and it didn’t take long for him to stop paying entirely:

By the time April 1 came and went without a rent check, Abel had had enough. She wrote Peritz to tell him she was taking him to small-claims court. Around the same time, Abel’s neighbors began writing her increasingly concerned emails. One of them had even seen Peritz taking her furniture down the driveway to the office in the garage late at night. They rarely, if ever, saw his wife or son.

Abel got in touch with the Kensington Police Department, which sent an officer by the house to talk with Peritz. The officer emailed Abel to tell her that he thought Peritz was “trying to establish squatters rights or lock you out,” and that she should have a cop accompany her when she eventually came back home. Someone from the police department would tell her she should start the eviction process as soon as possible. It might take weeks, even months, to get Peritz out of her house.

That’s because of California’s insane laws governing landlord-tenant interactions. The law protects tenants engaged in the worst sorts of cons—they can essentially continue to occupy a home, without ever paying rent, for months at a time. The eviction process is so crazy, it even formed the basis of the plot on an episode of HBO’s Silicon Valley (the episode, according to Bustle, was pretty dead-on). According to Mother Jones:

This process was set up in part to protect tenants from predatory landlords. But in some instances it has provided cover for people looking to score a few months of free housing. In 2008, SF Weekly reported that there were between 20 and 100 serial evictees operating in San Francisco—bouncing from home to home without ever paying a dime.

The sharing economy has provided new opportunities for grifters to game the system. So-called Airbnb squatters—like the pair of brothers who refused to leave a Palm Springs condo in the summer of 2014 after paying one month’s rent—have become more common. It’s enough of an issue that Airbnb has a page devoted to the topic; it warns that local laws may allow long-term guests to establish tenants’ rights.

Peritz has been accused of doing exactly this. Someone even set up a website to warn people not to rent their homes to him.

Thankfully, Abel finally prevailed over Peritz (for the most part), largely thanks to a public shaming campaign launched by sympathetic academics—including feminist giants Judith Butler and Wendy Brown. “I will write to every colleague in your field explaining the horrible scam you have committed,” Brown threatened. Students have tried to get Peritz fired—and for once, such an effort seems entirely merited. Suffice it to say, someone like Peritz should not be teaching a course on “Ethics and Politics of New Technology.”

Peritz eventually vacated the premises, and has started making restitution payments to Abel, according to Mother Jones. But what about all the landlords out there who don’t have Judith Butler on speed dial? They are at the mercy of a system designed to protect scammers from the consequences of taking advantage of property owners.

Liberals who support California’s eviction policies—including many of the folks at Mother Jones, I presume—will say these laws are necessary in order to prevent landlords from mistreating their tenants: to stop them from evicting people without notice, force them to fix the utilities, and prevent sudden rent increases. But this seems like a case where the straightforwardly libertarian approach works just fine: landlords and tenants should be permitted to agree to mutual terms, spell them out in a contract, and sue each other if either party violates it. The problem with California’s laws is that they supersede these contracts, tip the scales in favor of tenants, and enable the kinds of horrific abuses detailed in the Mother Jones article.

In any case, Abel told Mother Jones that she’s hoping her ordeal could persuade policymakers to reform Caifornia’s eviction laws. It’s sure nice to see college professors standing up for private property rights.