1 Fall 2013 Journal 1 management Innovation Excellence For Legal Aid Volume XXVII NO. 3 Fall 2013 From the Journal Committee 2 Articles How Do We Motivate Staff? 3 By Valerie Zolezzi-Wyndham, Managing Attorney, Community Legal Aid, and Katherine Shank, Supervising Attorney, LAF Sales and Use Tax Exemptions for Nonprofits 7 By Ron Barrett, Vice President, Nonprofit Services, National Corporate Research, Ltd. Features Crossword Puzzle: Not Entirely Civil 9 Book Review: The New Jim Crow: Mass Incarceration in the Age of Colorblindness 10 By Michelle Alexander (The New Press, 2012, $19.95) Review by John Tobin, Executive Director, New Hampshire Legal Assistance Technology: Tips for Creating Bring Your Own Device (BYOD) Policies 12 By Elizabeth Leman, AmeriCorps VISTA, LSNTAP Special Feature: Public Defense/Civil Legal Aid Delivering on Justice Holistic Defense: Providing Clients with More than Just a Criminal Attorney 14 By Robin Steinberg, and Skylar Albertson, The Bronx Defenders Criminal Debt in Philadelphia: A Case Study of Client Need Driving Individual Representation and Systemic Advocacy 17 By Rebecca Vallas, Staff Attorney/Policy Advocate, Community Legal Services The Collaboration of Public Defenders and Immigrant Rights Advocates 22 By Joann H. Lee, Directing Attorney, Legal Aid Foundation of Los Angeles Fighting for Social Justice for Indigent Clients: The Link that Binds Public Defenders and Civil Legal Service Providers Together 27 By April Frazier-Camara, Esq., Public Defender Service for D.C. Juvenile Mental Health Courts and Comprehensive Legal Services through Legal Aid and Public Defender Collaboration 31 By Patrick Gardner, President, Young Minds Advocacy Project, and Brian Blalock, Staff Attorney, Bay Area Legal Aid Collaborating to Serve our Clients and their Communities 35 By Leslie Walker, Executive Director, Prisoners Legal Services of Massachusetts The Value of Civil-Defender Partnerships in the Delivery of Legal Services to Low Income Clients 37 By Joan Glanton Howard, Chief Counsel, Legal Aid and Defender Association Advocacy for Prisoners Rights: Civil Litigation in the Criminal Justice World 39 By Angus Love, Executive Director, Pennsylvania Institutional Law Project Juvenile Justice: The Link Between Civil and Criminal Defense and Applications for Adult Representation 42 By Michelle Wangerin, Youth Law Project Director, New Hampshire Legal Assistance Why Collateral Consequences Matter: How Collaboration Between Legal Services Organizations and Public Defender Offices Can Transform Lives 44 By Allison M. Near, Staff Attorney, New Haven Legal Assistance Association The Socio-Legal Community Navigator: Client-Focused Solutions to Bridging Civil and Defender Services 47 By Jo-Ann Wallace and Mark Houldin, National Legal Aid and Defender Association The Back Page 55 special feature: Public Defense/ CIvil Legal Aid Delivering on Justice
2 2 Management Information Exchange Journal From the Journal Committee Public Defense/ Civil Legal Aid Working Together to Deliver on Justice The special feature in this issue is intended to illuminate the web of connections between the civil legal aid world and the network of public defenders across the country, so that all of us will be inspired to work together for the good of our client community. This issue got its start in a holiday present I received from my daughter-in-law, Liza Davis Tobin. She gave me a copy of The New Jim Crow by Michelle Alexander, which is the subject of a book review I wrote for this issue. Reading the book has inspired me to start a number of conversations about the responsibility of the civil legal aid community to address compelling issues in the criminal justice and prison systems that have exploded in size and impact in the past thirty years. As you read these articles, I am sure you will be inspired by the vision and commitment of civil legal aid attorneys, public defenders, and a host of allies to protect the rights of individual clients and strive for systemic reform. Several articles present a compelling model of holistic defender services, which is a blend of criminal defense advocacy, civil legal aid work, and an array of social and healthcare services. Rebecca Vallas s about her program s multi-faceted challenge to the vast criminal debt problem is inspiring. There are also several articles about how holistic and creative approaches such as juvenile mental health court can replace punitive measures with mental health treatment and other important services for troubled adolescents. Joann Lee writes about successful efforts in her program and across the country to collaborate in order to address the impact of criminal prosecutions on the lives of immigrant clients. She explains the compelling need to deal knowledgably with the life-altering consequences to immigrant clients of decisions in the criminal justice system. Read as a whole, this issue pushes us to reconsider and move beyond the separate categories for civil and criminal law practice that were impressed upon us in law school, and which we have too often accepted without challenge since then. Instead, as a number of authors of the articles in this issue say quite eloquently, we need to focus on our client needs, understanding that our clients actual problems cross over these abstract boundaries. We have to develop the knowledge and the structures that will enable us to skillfully and simultaneously address the array of legal issues our clients face, while reaching out to social service, health care, and educational institutions beyond the legal system which have enormous potential to help us serve our clients. I hope that you will: 1. Read this special feature; 2. Share it with your colleagues in your legal aid program; 3. Call up someone you know, or someone you don t know, in your local public defender office to start a conversation about working together; 4. Send them this issue of the Journal and set up a meeting; 5. Start that meeting by brainstorming about small collaborative steps such as cross-training, and, over time, move to a discussion of bigger and bolder holistic approaches, like those described by our colleagues in these pages. Good Luck! By John Tobin, Co-Chair MIE Journal Committee MIE MIE s mission is to spark excellence in leadership, management and fundraising in legal aid programs serving low income clients, through training, consulting and publishing activities of the highest quality.
3 How Do We Motivate Staff? By Valerie Zolezzi-Wyndham, Managing Attorney, Community Legal Aid, and Katherine Shank, Supervising Attorney, LAF 1 This article is derived from a workshop session at the MIE Managers Conference in This article, like the session, first describes the notion of staff motivation within a legal aid environment then provides practical tips to enhance motivation during periods of change. Motivation Matters How Do You Discover What Motivates Your Staff? Motivation is an interesting concept. There are and have been numerous studies trying to determine the best way to motivate people. The bottom line, however, is fairly clear, you can t motivate someone the motivation has to come from Valerie Zoleezi-Wyndham; Katherine Shank within! People are motivated by a number of factors. Some are motivated by money, of course. Some have other motivators such as rewards both public and personal: public recognition or pure enjoyment of the activity. Motivation is what drives or stimulates us simply said, what gets us out of bed in the morning or what keeps us engaged. We are each motivated by unique triggers. Managers should see it as their responsibility to understand what motivates his or her employees and then should use that trigger to support individuals to work towards fulfilling the organization s mission. Motivation cannot operate in a vacuum. Our task as managers and supervisors is to ensure that whatever the motivator, the conditions in the workplace are conducive to supporting and enhancing motivation to achieve our overall goals. Start with Discovery Motivation is personal. It stems from an individual s background, personality, and personal and professional goals. A successful manager cannot assume that his or her employees are each motivated by the same factors. Managers should ask employees what they value as individuals, why they chose to work in legal aid, what long term professional goals they have. Here, the goal is to explore with the individual what possible motivators exist for them and how you as their manager or supervisor can use these motivators to help them to do their best work. Some people enjoy the personal rewards of working with appreciative clients, others enjoy the challenge of tackling legal puzzles, some enjoy a regular routine and others a diverse case load or various responsibilities. Some might seek private or public recognition, others money and yet others pure enjoyment. The answers to these questions could hold the keys to motivating your staff. Examine Your Systems It can be useful to examine your program s practices to identify whether the systems in place motivate or discourage employees. You may want to assess how employees are rewarded. How do you recognize and reward your staff? Do s go out acknowledging successes? Are employees acknowledged in staff meetings, in the hall way, at program-wide events? Are you using different methods to reward staff? Remember, not all staff are motivated by the same triggers. You should use various methods to meet different employee needs. Are you careful to reward the right behaviors? If you do have a reward system, you should be aware of the impact of these rewards on other staff. Are they serving as de-motivators for other staff? Be careful that you are rewarding employees who engage in different types of work. You may be doing a great job motivating one department in your program while at the same time unintentionally discouraging others.
4 4 Management Information Exchange Journal How Do We Motivate Staff? Continued from page 3 Leadership opportunities are often viewed as motivators for some staff. These can include the opportunity to participate in a complex case, to participate on a committee (internal or external), to be invited to lead a training, to engage in a special project or initiative, or to be considered for a leadership position in the organization to name just a few. Managers should be deliberate about presenting these opportunities and consider how they can be used to motivate staff. It is important to examine the relationship between your employees efforts and performance, and performance and organizational rewards to assure that the program s culture supports all staff doing their best work. Engage! Motivate! Engage your employees in conversations about the organization s mission and the organization, what works well and what does not work well. They can see problems that managers do not see. Seek their input, acknowledge the contribution, and respond. Allowing staff to have an active role in planning and service delivery can enhance motivation. Remember that fighting poverty and working towards social justice for all requires a legal aid village. It is critical that all members of the organization are encouraged, welcomed and motivated. The receptionist is just as important to the organization as litigators or outreach paralegals. Trust your employees. Provide them with every opportunity to succeed. Well-designed orientations and continuous training opportunities enable staff to succeed. Make certain that your program, office or unit has clear expectations and goals. Then, move out of the way and give them the opportunity to succeed. As they work towards success, provide regular timely feedback. Evaluate your staff regularly. Constructive feedback and regular evaluations when provided with appropriate support will motivate individuals because it allows them to know how they are doing, what they do well and where to focus on improvements. Remove Barriers Motivation is not just about creating incentives. Managers also need to identify and remove barriers that discourage motivated employees. Performance always suffers if employees do not feel that they have a supportive work environment. Check in with staff and offer continuing opportunities for them to give feedback about their work environment to you or the management of the program. An often overlooked factor is communication. How effectively do you communicate with your staff? How frequently? How is it received by staff? It is important to communicate clearly and regularly with staff so that they have clear direction, and understand protocols and programmatic expectations. Motivation can be negatively impacted by ineffective or inadequate communication. Ensure that your staff have the tools necessary to do their jobs successfully. Do not assume they have what they need if they are not asking for help. Engage staff in conversations about improvements that could enhance their work performance. You may not be able to provide every tool requested, especially in these challenging financial times, but your employees will appreciate that their input was sought and that you demonstrate a genuine interest in helping them succeed. Finally, consider whether you are challenging your staff. Do they understand your expectations of their work performance? Are you unwittingly holding staff back from rising to new levels? They may be in a rut because they do not think anything else is expected of them. They may be wishing they could shoot for the moon but do not think they have permission to do so. Motivation During Change Keeping staff motivated can be a challenge in regular circumstances. Maintaining motivation during times of change can be even harder. Regardless of whether the change was planned or unexpected, managers need to make sure that the change has a positive outcome. Keeping staff engaged, enthused, excited, and motivated during change is essential to a successful outcome. This section will focus on how and why change can dampen employee motivation and the tools that managers have to sustain and grow motivation during times of change. Acknowledge That Change Is Hard! Change is hard, even for the most adaptable among us, and can easily affect motivation. In legal services particularly, the stress of our work can make it easy to derive comfort from continuity and knowing what to expect. Even without realizing it, just knowing the intake procedures or how to use the equipment frees up emotional and mental energy necessary for staff to focus on the work that inspired them to join and stay
5 Fall with legal services. Facing change can also make us idealize our old ways and former patterns. The case management software that everyone groused about for years? When a new system is suggested, the old one becomes irreplaceable. When a move is proposed, the crummy office location that was formerly unsafe for staff and inconvenient for clients is now described as integral to the delivery of high quality services. Resistance to change is natural and should be expected, no matter how overdue or clear the need for change may be. Change comes in many forms, and they can all be unsettling. It is obvious why staff could struggle to adapt to significant upheavals like an office relocation or layoffs. These changes can easily cause even the most positive and self-starting person to lag in productivity and enthusiasm. However, even smaller changes like a revamped organizational structure or the introduction of new technology are a distraction that can diminish office morale and motivation. Change can increase stress, insecurity, create a sense of loss, decrease production, reduce efficiency, and lower morale. When we spend energy adapting to change, our motivation and abilities to maintain our standard productivity decrease. Though everyone manages change differently, some degree of stress accompanies every change. Recognizing that change is difficult can help us to empathize with staff that are having a difficult time and can assist everyone in adapting to the change in a positive and productive way. Acknowledge to your staff that you know that change is hard and that you appreciate the losses that come along with the gains. It is also important to consider whom the change affects. Some changes impact the entire staff while others only involve a limited group. Remembering who is most affected by the change and paying special attention to those individuals can go a long way in making the transition as smooth as possible. Communicate The constant thread through maintaining motivation during change is open, clear, and honest communication. Just as people react differently to change, they also vary in the ways that they best receive information. In order to increase the odds that your message is received, communicate it frequently and in a variety of ways. Have casual conversations, hold town hall forms, send s, hang postings in the lunch room. Mix it up and don t be afraid that you are going to overdo it! You would rather have your staff complain that they are sick to death of hearing about the new intake system than gripe that they don t know when or how it is being implemented. Simply sharing the information about the change will alleviate confusion and minimize speculation which will reduce stress. Solicit Input and Delegate Responsibility When Appropriate Understandably, not all change is up for debate. There are some decisions that must be made by management, without soliciting the advice or opinions of general staff. However, when suitable, giving staff a voice in the change process can be vital to creating and maintaining motivation by the change. Participation creates ownership, which leads to an increased chance MIE JOURNAL Articles published in the Management Information Exchange Journal represent the views of their authors and are not the views or policies of the MIE Journal Committee or the MIE Board of Directors. Readers are welcome to comment on articles appearing in the Journal and may do so by writing to the MIE Journal Committee. The Committee strives to present in the pages of the Journal diverse perspectives on the management and related issues in legal services. MIE invites readers to submit articles for publication. Please note that the MIE Journal contains 56 pages and is published four times each year. Articles accepted for publication may not appear immediately but may appear in later issues consistent with the themes of the issue and the decisions and editorial policies of the MIE Journal Committee. Management Information Exchange 99 Chauncy St., Suite 700 Boston, MA T: ; F: Patricia Pap, Executive Director
6 6 Management Information Exchange Journal How Do We Motivate Staff? Continued from page 5 that the change will be have the desired outcome. For those issues that would benefit from staff influence, create opportunities for input, such as town hall forums with question and answer sessions, surveys, and meetings with union representatives. Specifically ask about obstacles to change and what would make the change process smoother. The answers may illuminate complications that were not on your radar, allowing you to address them and prevent future problems. The overall goal is to transition to the new system smoothly and efficiently without undue disruption to client services. Seeking the opinions of those affected by the change, requesting feedback, and adjusting your plan, if appropriate, gives them ownership in the process. Participation in the problem-solving gives them a stake in making the outcome a success and shows that you value their contributions and experiences. If possible, share the decision-making and allocate responsibility. Implementing new word processing software? Develop an internal team of expert uses to train staff and be ambassadors for the new program. By creating leadership opportunities and ways for staff who do not ordinarily work together to connect, you can make change a growth and team building opportunity. Steps to Transition Part of providing information is getting the word out in a clear way that invites your audience to take ownership in the change. 1. Start by explaining why the change is necessary. Was the change a choice based upon what is best for the agency and clients or was it forced by way of funding changes or other external processes? List what other options were considered and why they were not selected. This will go a long way in justifying how you reached the decision to make the change and what the change will be. If staff understand why the change had to happen (even if they were not consulted), they are more likely to be on board with making the change successful. 2. Share your information. If you believe the change is best for the agency, think about why you hold that belief and what evidence informs your decision. Does your staff have all the same information? If the statistics show that your current intake system misses a significant number of calls from non-english speakers, sharing this data with staff will help them understand why a new phone or intake system is necessary. Disseminating all information that is appropriate to share facilitates bringing staff on board with your vision. 3. Stay positive! Even if the old system was inefficient or inconsistent, harping on negative facts will not win you any converts to the proposed program. It is OK to list the deficiencies of the former system, but do not describe it as worthless or insinuate that anyone who resists change is out to lunch. No one wants to hear that they have been operating in an outdated or unproductive way. Even if they did not select the former program or front desk procedure, people will identify with it simply because it is familiar and part of their routine. In order to get staff to buy into your proposal, focus on the strengths of the new program. This will help to get staff motivated and excited about the new system instead of concentrating solely on what they are losing. 4. Describe the goals and objectives. Explain what you hope to accomplish and why you think your method will be the best path to success. The goals should be measurable and concrete. Do you expect fewer errors when checking conflicts? An increased number of extended representation cases? Explicitly listing the goals will assist staff in understanding why the change will be beneficial. Goals that clearly align with your agency s mission will be easier for staff to embrace. 5. Describe the change process and what the agency will look like after the change. What steps will be taken? Who is responsible for taking them? Staff may assume you expect more of them than you actually do. If education about new procedures or equipment is necessary, explain the training plans. By explaining the process and the tools that will get everyone to the end goal, the change will be less overwhelming. Depending on the size of the change, it may be difficult for staff to envision the agency after the change is implemented. Clearly articulate any changes in staff roles or expectations and describe how the operations or the mission of the agency will be affected, if at all, by the change. 6. Directly state expectations for staff which include specific, measurable results. Uncertainty breeds anxiety which decreases motivation. Staff need to know your expectations so they can mentally plan for the change and potentially adjust their current Continued on page 11
7 Sales and Use Tax Exemptions for Nonprofits By Ron Barrett, Vice President, Nonprofit Services 1 National Corporate Research, Ltd. In this world nothing can be said to be certain, except death and taxes. When Benjamin Franklin wrote this sardonic proverb to Jean-Baptiste Leroy in 1789, tax exemptions were likely few, and he certainly wasn t talking about tax-exempt charities. Nowadays, the only things more pervasive than taxes are exceptions, deductions and exemptions from taxes. As for charities, not only are these entities potentially immortal in terms of their perpetual corporate existence, but they also have the keen ability to avoid most taxes. Of course, immortality for nonprofit corporations is only assured if they make prudent business decisions, maintain public support and comply with state and federal laws and regulations. Many tax exempt entities died (or at least took a step toward death) last summer when the IRS revoked the tax-exempt status of more than 275,000 nonprofit organizations for failing to file IRS Form 990 annual returns in the preceding three years. Similarly, nonprofits that fail to file required annual or periodic reports with the state corporate and charity authorities may find that they are susceptible to death in the form of revocation or involuntary dissolution. The Elusive Sales Tax Exemption It is well known that most nonprofits are exempt from federal and state income tax. They are also frequently exempt from real property tax, but one tax exemption that even nonprofits sometimes find elusive is sales tax. With sales tax rates approaching 10% in some jurisdictions that combine state and local sales taxes, it is an important exemption not to overlook. Some nonprofits, however, fail to take advantage of these exemptions because of the complexity of determining in which states an exemption exists and because of the lack of uniformity from state to state. Though several states provide a variety of sales tax exemptions to various industries and organizations, most only make an exception for certain groups or types of nonprofits. For example, Georgia s list of eligible sales tax exemptions is thirteen pages long, but there is no broad exemption for nonprofit organizations. In fact the opposite is true, with several narrow exemptions available to certain types or specific nonprofit organizations, such as nonprofit blood banks. 501(c)3 Tax Exemption is Key In the majority of states the key to a sales tax exemption is the designation as a charitable, 501(c)3 nonprofit organization. Fortunately for the nonprofit sector, there are nearly a million such organizations in the United States. These are organizations recognized under the Internal Revenue Code as tax-exempt, charitable organizations. For other types of tax-exempt nonprofits, a state sales tax exemption is much less certain and requires a careful reading of each state s tax code and regulations. Even with a 501(c)3 designation, charitable nonprofits in some states are still not exempt from sales taxes and, even if they are, procedural requirements must be strictly followed to actually receive the exemption. For example, in Washington, D.C., a charitable nonprofit organization must be physically located in D.C. and file an application to qualify for a sales-tax exemption. Once an exemption application is approved and a Certificate of Exemption is issued, exemptions from sales tax are granted only if the purchases, purchaser and the method of payment are in accordance with the requirements to receive an exemption from sales tax. In other words, the purchases must relate to a charitable purpose, by a person associated with the tax-exempt organization, and the payment must be made by that organization. If all of these requirements are not met, then sales tax may be imposed, even when an organization has a legitimate sales-tax exemption and a certificate to prove it. This is
8 8 Management Information Exchange Journal Sales and Use Tax Exemptions for Nonprofits Continued from page 7 true in D.C. and nearly all states that offer an exemption from sales tax to nonprofit organizations. In Pennsylvania, it is not sufficient just to be a charitable nonprofit in order to receive a sales tax exemption. Under Act 55 of 1997, an organization must complete a cumbersome, five-page application and quantifiably demonstrate that it meets all five of the following criteria in order to qualify for the state sales tax exemption: 1. advance a charitable purpose; 2. operate entirely free from private profit motive; 3. donate or render gratuitously a substantial portion of its services; 4. benefit a substantial and indefinite class of persons who are legitimate subjects of charity; and 5. relieve the government of some of its burdens Sales tax exemption applications are frequently denied in Pennsylvania for failing to prove that an organization meets all of the above requirements. Fortunately, most states do not have such cumbersome requirements and the forms are somewhat consistent in terms of required information and supporting documents that must accompany a sales-tax exemption application. General Requirements in Most States Most states that broadly offer sales tax exemptions to charitable nonprofits (about thirty) require the completion of a short application form along with some or all of the following items in support thereof: 1. IRS Determination Letter and/or IRS Form 1023 or Articles of Incorporation and/or Bylaws 3. Financial Statements and/or Form 990 A fee is rarely required and, in most states, this is a one-and-done type of filing. Some states such as Maryland, Missouri and Florida require annual, triennial, or quinquennial (every five years) renewal filings. Varying State Requirements Not all states require an exemption application or certificate to obtain an exemption from sales tax, but this does not necessarily mean that obtaining the actual exemption is any easier. For example, states such as Kansas and Illinois require a letter of request, while others simply require that purchasers provide to each vendor a form that claims they are exempt from state sales tax (e.g., Connecticut and Michigan). In North Carolina, charities must pay sales taxes, but nonprofit entities defined in G.S (b) can file semiannually for a refund of sales taxes paid. In Wyoming, all that is required is for nonprofits to provide the state with a copy of the organization s IRS determination letter in order to receive an exemption approval letter. Also, in a handful of states, there is no sales tax (Alaska, Delaware, Montana, New Hampshire and Oregon), so everyone is spared the additional expense in these states. For most nonprofits, a sales tax exemption usually makes sense only in the state they are domiciled or in nearby states where they conduct a lot of business. For larger nonprofits that conduct business in multiple states and regularly make exempt purchases from the same vendor(s), it sometimes makes sense to obtain sales-tax exemptions in multiple states. For these organizations, it might also be helpful to use the Streamlined Sales and Use Tax Agreement Certificate of Exemption (SSUTA-COE) when making tax exempt purchases. Multistate Certificate of Exemption The SSUTA-COE was created by the Streamlined Sales Tax Governing Board pursuant to the Streamlined Sales and Use Tax Agreement. This board and agreement were created by multiple state members with the goal of streamlining the administration of sales tax collection and reporting, including procedures for claiming an exemption from sales tax in multiple states. The SSUTA-COE is accepted by vendors in twenty-three states and in some nonmember states. Not all states, however, allow all exemptions listed on the form and, therefore, purchasers are still responsible for knowing if they qualify to claim an exemption from taxes in the states that would be due taxes on otherwise taxable sales. Also, nonprofits that use this form will be held liable for any tax and interest, and possibly civil and criminal penalties imposed by the member state(s), if the nonprofit is not eligible to claim a tax exemption. So, while this form can be a time saver, it does not relieve a nonprofit organization from first obtaining a sales tax exemption in the state(s) or performing the proper due diligence of knowing whether or not the organization qualifies for a sales-tax exemption in the states that accept this form. Nonprofits Need Not Fear Death and Taxes Varying sales tax exemptions from state to state, Continued on page 11
9 Fall Not Entirely Civil A Puzzle Across 1 Is rife (with) 6 It has a certain ring to it 9 Speak with a gravelly voice 13 Quarrel 14 It s between Can. and Mex. 15 Big name in grills 16 Some high school attachments (2 wds.) (4,5) 18 Glue 19 Dazzles 20 Valiant leader? 21 John or Paul, but not George or Ringo 25 Haiti s Francois Duvalier, familiarly (2 wds.) (4,3) 29 It s bad when they re breeched 30 D.C.-focused journalism org. that distributes content via newspaper, internet, TV and radio (with The ) 31 Mimic 32 A female water-elf 33 Do film work 34 Preparatory exercise for aspiring performers and sports teams (2 wds.) (8,5) 38 Master s Voice 39 Monopoly income 40 Word before sandwich or soda 42 Periodic Table listings 44 Big name in small swimwear 46 Molding medium for moppets (2 wds.) (4,3) 47 Slogged (through) 48 Emerge victorious 49 Procrastinator s promise 50 Fortuneteller s card 53 Cute creatures in a pet store window (2 wds.) (5,4) 58 Bouquets 59 Do fondue 60 Open, as a toothpaste tube 61 Two- sloth 62 Piggery 63 I Fall To Pieces singer Cline Thanks to Pat McIntyre, whose puzzles also appear in the New York Times, for this crossword. The solution is on MIE s website: Down 1 Pub fixture 2 Miss the mark 3 I problem? 4 Silent 5 Administer a downer, say 6 Student getting one-on-one help 7 Exploits 8 Undergrad degrees 9 Echo 10 Blood-typing letters 11 Word after safe or same 12 Snoop 15 Tearing more 17 Cobblers tools 20 Bona fide 21 mode 22 Upper (2 wds.) (3,4) 23 Like the States to a Brit 24 Song word repeated after Que 25 Contagious diseases that leave their mark 26 Called someone up, old schoolstyle: Var. 27 Jam or obstruct 28 Simple sack 30 Ancient Britons 32 Beethoven s Choral Symphony 35 Ending for many films 36 Part of some joints 37 Summer coffee choice 38 With it, once 41 Physique, informally 43 Dearie me! (2 wds.) (2,4) 44 What s served in a 62-Across 45 Show me the money! (2 wds.) (4,2) 47 Opium flower 49 Something for lawyers to file or wear 50 Preschooler 51 Commotion 52 v. Wade 53 Justice partner highlighted in this issue...or a hint to 16-, 25-, 34-, 46-. and 53-Across: Abbr. 54 Acronym for Navajo phrase meaning: attorneys who work for the economic revitalization of The People 55 Halloween mo. 56 Filling station filler 57 Snoop
10 book review The New Jim Crow: Mass Incarceration in the Age of Colorblindness By Michelle Alexander (The New Press, 2012, $19.95) Review by John Tobin, Executive Director New Hampshire Legal Assistance This is the most powerful, disturbing, eye-opening, and myth-shattering book I have read in decades. Every public defender and every civil legal aid lawyer and advocate should read this book and then talk about the issues it raises with their colleagues, friends, and families, and in their religious, social and political communities. Michelle Alexander blends considerable historical knowledge, an array of data and social science research, and a compelling moral perspective in her analysis of the history of racism in America, and its ongoing and ever-evolving corruption of our justice system. The core of her book is an analysis of a combination of political, legal and financial forces that have led to the mass incarceration of young men of color largely for drug-related crimes, with the resulting devastating impact on the communities these young men come from. She argues persuasively that the overt racism of the segregationist South evolved into the subtle appeal to racial fears of the 1960s political cry for law and order and the southern strategy developed and implemented by Richard Nixon and his successors in the 1970s and 80s. In the 1980s to 1990s, many of the same forces fueled the War on Drugs. Alexander carefully reveals the racist underpinnings of all of these political and legal movements. Equally devastating for idealistic lawyers who would hope that our legal system had overcome the overt segregation and racism of the pre-civil rights era, Alexander takes the reader step by step through the criminal justice system s current deep-seated racial biases. She demonstrates that ever-increasing prosecutorial discretion and vast sums of federal funds allocated to police for fighting the war on drugs have created enormous power disparities and incentives for the justice system to sweep generations of young men into the courts and then into prisons. One of the most important revelations of the book is the legal system s failure to take into account the modern forms of racial bias and preference. Because overt racism is now outlawed and has also become socially unacceptable, many Americans believe that racism has been largely eradicated from our legal system and our public life. However, as she notes: Decades of cognitive bias research demonstrates that both unconscious and conscious biases lead to discriminatory actions, even when an individual does not want to discriminate Studies have shown that racial schemas operate not only as part of conscious, rational deliberations, but also automatically without conscious awareness or intent. As Alexander points out, the fact that a person may honestly believe that he is not biased against African- Americans, and he may even have black friends or relatives, does not mean that he is free from unconscious bias. Implicit bias tests may still show that the person holds negative attitudes and stereotypes about blacks, even though he does not believe he does and does not want to. She demonstrates that in an array of cases the U.S. Supreme Court has refused to acknowledge or recognize that these modern forms of racism must also be addressed, and she argues convincingly that this bias cannot be confronted and ameliorated if the courts insist that a charge of racial discrimination must be proved by demonstrably intentional and overt acts or statements. Despite the clear data that showed that drug use is actually somewhat higher among the white population, Alexander describes in heartbreaking detail how black men are much more likely to be accosted and searched by the police, more likely to be prosecuted more vigorously, receive harsher sentences, etc. Then
11 Fall the African-American community is blamed for these high rates of incarceration and stigmatized as being pathological. Once a person is caught up in the drug war and sent to prison, his future is brutally circumscribed. One of the most compelling parts of The New Jim Crow is Alexander s portrayal of all of the barriers that anyone convicted of a drug crime faces in attempting to find and keep a job, obtain housing, or gain public benefits that he or she would otherwise be eligible for. She shows that the harsh stigmatization and disenfranchisement of vast numbers of young men of color robs them of the ability to improve their financial lot in life, and that all of this leads to more disrupted families with fathers who face permanent barriers to fulfilling their duty to support their children. This book has convinced me that it is vital that the civil legal aid world pays more attention to the integration of former prisoners into our communities and that we join with the array of organizations and individuals who are seeking to temper the drug war, lessen the loss of benefits and rights for former prisoners, and understand and address the implicit bias in our justice system. We will never end or even ameliorate poverty in our communities until we radically change our criminal justice system to make it less racist, and less focused on non-violent drug-related issues instead of violent crime, and also take steps to heal the vast generational wounds that these policies have caused. Sales and Use Tax Exemptions for Nonprofits Continued from page 8 specific nonprofit, entity-based exemptions, specific charitable use, purchaser and payment requirements and multistate exemption certificates all add to the confusion of determining where, when and how a nonprofit organization qualifies for a sales tax exemption. Yet nonprofits need not fear death or sales taxes. Assistance in making these determinations can be obtained by consulting an attorney, tax advisor or knowledgeable service company. 1 Ron Barrett is the Vice President of Nonprofit Services at National Corporate Research, Ltd. ( NCR ), a leading provider of nationwide registered agent, corporate and secured transactions services. Feel free to contact Ron with any questions you have about state nonprofit compliance. He can be reached by phone at How Do We Motivate Staff? Continued from page 6 work patterns. If your agency is moving, develop and disseminate timelines for the move days for cleaning out offices, deadlines for packing, and rules about what will be moved and what must be taken home. Put your expectations in writing and regularly send out reminders. Give sufficient notice of the tasks and their deadlines. 7. Allow your staff to vent about the change. The change may not be all good, such as in the case of layoffs. Or, the old system may have had some benefits generalist attorneys lacked expertise in certain areas but were great at issue spotting. Even if you cannot see any perks to what you are leaving behind, at least one person (and often more) on staff does. The permission to complain and freely mourn the loss of a familiar system can help staff move on to the new arrangement. Do not allow negativity to dominate the atmosphere but do recognize that change means loss and give staff the freedom to express their feelings about the change. 8. Acknowledge and reward victories in the change process. Everyone appreciates a win, especially when times are tough. By setting some short term and manageable goals, when those goals are accomplished, everyone feels a boost. Highlight when milestones are reached fiftieth community presentation from the new outreach unit, thirty evictions prevented by the reorganized housing team, and link them to the change. This helps to reinforce the positive aspects of the change and keep staff motivated. The success of our work depends on our dedicated staff. We owe it to them to make any transition as thoughtful and smooth as possible. While some challenges are unavoidable, taking the time to plan for change and respecting the emotions that come along with it is critical to ensuring that staff continue to be engaged and energized by our work. Continued on page 53 (800) extension 4755 or by nationalcorp.com. This article is provided for informational purposes only and should not be considered, or relied upon, as legal advice.
12 technology Tips for Creating Bring Your Own Device (BYOD) Policies By Elizabeth Leman, AmeriCorps VISTA 1 Legal Services National Technology Assistance Project (LSNTAP) No one can deny that new gadgets like smart phones and tablets can greatly improve client representation and the efficiency of communications. More and more, staff are using their personal devices to communicate with clients (who are increasingly tech-savvy themselves) or to carry documents to court or meetings. But how secure is this practice? Recently on the Legal Services Technology listserv, the issue of creating Bring Your Own Device (BYOD) policies to deal with the issue was raised, and is here explored further. Basically, BYOD sets guidelines for personal devices to be used for work purposes. Another option, called Company Owned, Personally Enabled (COPE) sets the parameters for personal use on an otherwise work-owned device. Some things to consider when setting up either BYOD or COPE policies might include: To begin, it might be helpful just to consider what portion of use will be work-related versus personal (for an individual employee or employees as a whole). This will vary by organization and probably by individual as well. Clearly delineate who will own what with regard to both the device itself and the information it stores/ accesses, and whether the organization s IT staff can monitor the device s use. Establish what acceptable use is what employees can access, download, view, and so on. This includes anti-harassment guidelines (possibly just integrated with those you already have), prohibitions on illicit material, and more. You may also want to define which particular employees are entitled to bring their devices and/ or be reimbursed for their work use (i.e., who has a legitimate work use for their personal device?). Will you pay employees overtime if they use their device to make phone calls, send s, etc., after hours? Moving on, you may want to consider what specific technology you will allow on your network. It certainly makes things easier for your IT staff if a limited number of types of devices, platforms, and operating systems are allowed. But, try to provide a variety of options: ios, Android, Windows, BlackBerry, etc. You may also want to set up a procedure for the IT staff to configure and secure devices before they connect for the first time. Next, security is a very important consideration. It is important that devices are adequately protected, probably with a strong password (this should mean more than just a 4-digit PIN; define what it means at your organization). Decide whether mobile devices should be able or permitted to access sensitive data or just more basic services, like calendars and . Applications downloaded to the phone or tablet are another consideration: make a whitelist and a blacklist of allowed/not allowed apps, and make sure employees know that they should only download from the App Store, Google Play, or equivalents. Also be sure to clarify for which apps your IT staff will offer support. What happens if the device is lost or stolen, or if the employee leaves the organization? Be sure that you can remotely wipe the device, especially if it stores sensitive information, and set up procedures for removing data when employees quit or are let go. Make sure that employees sign a consent form to let you wipe the device if necessary, and that they back up data (both work and personal). Financial issues are the other major consideration in setting up a BYOD or COPE policy. You need to define who buys the device in the first place, who pays what portion of the monthly plan and how, and what to do if the device is lost or broken. To buy the device in the first place, some organizations set limits based on what type of phone will be
13 Fall purchased, and the employee pays anything over that limit (maybe $200). If the phone is owned by the organization, it should obviously be fully paid for by the organization. Next, you need to decide how much of the bill the organization will pay. Some organizations just provide a flat amount, like $20 per month as a part of the employee s paycheck. The exact amount will depend on what kind of phone it is, how heavily it is used, whether there is a data plan, and maybe on the individual s position in the organization (i.e., the executive director may get his/her data plan and minutes compensated, while attorneys only receive compensation for minutes). Also define what services are covered by that compensation roaming? Overages? Text messaging or a data plan? The tax issues associated with this are a little confusing. From my understanding (as outlined in here in this IRS memorandum: ig/sbse/sbse pdf), if an employee is reimbursed for business use of a personal cell phone, that money counts as a working condition fringe benefit and not towards the employee s gross income. Therefore, it is not taxable as income. You do, of course, have to have legitimate business reasons to have the phone. If the phone is owned by the organization, the full bill is paid directly to the phone company (and any personal use of the device is considered a de minimis benefit and is therefore not taxable). Again, the phone is considered a working condition fringe benefit, does not count toward the employee s gross income, and is not taxable (as outlined in this IRS memorandum: If you do not have a BYOD or COPE policy, I would strongly suggest developing one, or a similar data security policy. Just because you are not thinking about it does not mean that the attorneys at your organization are ignoring it, too they may be using their phones for all sorts of things that are jeopardizing data! See the how-to articles below, or many sample policies from other organizations. Some resources for more information: Bring your own device, Wikipedia (http:// en.wikipedia.org/wiki/bring_your_own_device) How do you respond to the legal risks of BYOD?, Networked Lawyers (http://www.networkedlawyers. com/how-do-you-respond-to-the-legal-risks-ofbyod/?utm_source=rss&utm_medium=rss&utm_ campaign=how-do-you-respond-to-the-legal-risksof-byod) Does Your Firm Have a Bring-Your- Own-Device Policy?, ABA Journal (http:// the_battle_of_byod_does_your_firm_cope/) 7 Tips for Establishing a Successful BYOD Policy, CIO.com (http://www.cio.com/article/706560/7_ Tips_for_Establishing_a_Successful_BYOD_Policy?p age=1&taxonomyid=600013) How to create a BYOD policy, TechTarget (http://searchconsumerization.techtarget.com/tip/ How-to-create-a-BYOD-policy) BYOD Policy Template, IT Manager Daily (http:// Internal Revenue Service Notice : Tax Treatment of Employer-Provided Cell Phones, IRS (http://www.irs.gov/irb/ _irb/ar07.html) Interim Guidance on Reimbursement of Employee Personal Cell Phone Usage in light of Notice , IRS (http://www.irs.gov/pub/foia/ ig/sbse/sbse pdf) Sample BYOD policies from other legal services organizations (http://lsntap.org/content/ bring-your-own-device-policies) 1 Liz Leman served as the August 2012-August 2013 AmeriCorps VISTA at the Legal Services National Technology Assistance Project (LSNTAP), where she assisted legal services organizations with technology-related issues. Liz graduated from Elon University in Elon, North Carolina in May 2011 with degrees in History and International Studies. There, she studied International Humanitarian Law and hopes in the next year or two to attend law school. Last year, she served on the AmeriCorps St Louis Emergency Response Team before joining LSNTAP. In the coming year, she ll continue her AmeriCorps service at Montana Legal Services Association. Liz may be reached at Clearly delineate who will own what with regard to both the device itself and the information it stores/accesses, and whether the organization s IT staff can monitor the device s use.
14 MIE journal SPECIAL FEATURE Public Defense/CIvil Legal Aid Delivering on Justice Holistic Defense: Providing Clients with More than Just a Criminal Attorney By Robin Steinberg, Executive Director, and Skylar Albertson, Assistant to the Executive Director, The Bronx Defenders 1 Robin Steinberg; Skylar Albertson When we first opened our doors at The Bronx Defenders, we had no idea where our path might take us. We knew only that we wanted to create an extraordinary public defender office that reflected the needs of our clients, their families and the community of the South Bronx. We began with a commitment to client-centered and community-oriented advocacy. Client-centered defense, a legal strategy that has steadily gained ground over the past forty years, directly involves clients in the decision-making process for each case. In contrast to more traditional, paternalistic approaches to criminal defense, the client-centered model calls upon attorneys to base their advocacy in clients priorities, as opposed to what attorneys might assume are their clients priorities. Community-oriented defense, which emerged in the 1990s as an effective and innovative model for public defense, emphasizes the importance of working hand-in-hand with the community served. Most importantly, we listened to our clients in order to identify precisely what the impact of the criminal justice system was in their lives, and what services needed to be developed. What we found was not simply that our clients faced a myriad of issues outside the courtroom, but that our clients often cared more about these civil issues than they did about the dispositions of their criminal cases. Our clients were often more concerned about whether they would lose their public benefits, have their children taken away, lose their housing, or enter deportation proceedings than whether they would have to submit to probation, financial penalties or even incarceration. Our dedication to providing client-centered defense required us to act on this discovery. Once we found that our clients priorities often lay outside of their criminal cases, we worked to expand the scope of our advocacy to match our clients needs and concerns. Our model holistic defense represents our best efforts to fulfill the varied needs of our clients. Holistic defense is client-centered, community-oriented public defense that treats all clients as human beings and provides them with access to a variety of legal and nonlegal services, whether those services are provided in-house or not. How Holistic Defense Became a Necessity The overlap between civil and criminal punishments is nothing new, especially in the United States. However, the past five decades witnessed a flood of tough on crime legislation that has amplified this phenomenon. Now all it takes is a mere arrest for the criminal justice system to create havoc in a client s life across many different civil areas. The advent of
15 Fall widespread data-sharing between government agencies has only served to exacerbate the effects of these collateral consequences. To make matters worse, civil legal services became more difficult for indigent criminal defendants to obtain just as collateral consequences were on the rise. Throughout the history of the Legal Services Corporation (LSC), Congress has imposed funding restrictions that emphasize a distinction between the so-called criminal poor and the non-criminal poor. These restrictions ignore the fundamental realities of the world our clients live in. Poor people are not simply poor; poverty brings with it a myriad of related issues that plague our clients before, during, and after their involvement with the criminal justice system. Furthermore, although the Supreme Court s landmark decision in Gideon v. Wainright revolutionized public defense by affirming that the right to counsel is a constitutional requirement, it had the unintended consequence of creating a separate funding stream for criminal defense. The resulting divide between civil legal and criminal defense services is nonsensical nearly all of our clients come to us with both criminal and civil legal issues. Even worse, since a criminal case disposition impacts what happens in a variety of important civil arenas, this divide between criminal and civil legal assistance providers can lead a public defender to inadvertently cause more instability in a client s life. If an attorney neglects to consider the full range of potential effects attached to particular outcome in a case, he may encourage his client to take what looks like a good criminal case disposition, but in actuality has devastating consequences beyond the criminal courthouse. Now more than ever, our clients are set up to fail each time they are arrested. However, there is reason to believe that the situation will improve. In Padilla v. Kentucky, the Supreme Court ruled that attorneys must explain the potential immigration consequences of different case dispositions to their clients. The Court s decision affirms that as a matter of constitutional law and as a matter of human dignity our clients deserve advocacy beyond traditional criminal defense services. In 2010, we secured funding from the Department of Justice for our newly created Center for Holistic Defense, which provides technical assistance to defender offices seeking to adopt holistic practices. In the years since the Center s founding, public defender offices ranging from the Wisconsin State Public Defender to the Tribal Defenders of the Confederated Salish and Kootenai Tribes in Montana have recognized the need for holistic defense. The Four Pillars of Holistic Defense Over the past sixteen years, we have developed the Four Pillars of Holistic Defense to help keep ourselves in line with our vision, and to help more organizations switch to a holistic model. Although holistic defense may operate differently in each office, these four pillars serve as a guide for every holistic defender. In our experience, the Four Pillars of Holistic Defense reduce attorney workload, result in better case dispositions and increase client satisfaction. 1. Seamless Access to Legal and Nonlegal Services That Meet Client Needs Our clients run up against frustrating bureaucratic delays in nearly all of their interactions with government agencies and authorities. In order to provide each client with the full range of services that she needs, holistic defense organizations need to establish quick and efficient lines of communication between different legal advocates and providers of social services. This begins with criminal defense attorneys, who must be trained to ask questions that will best equip them to immediately understand a client s full range of needs. Civil attorneys and social workers are critical in this effort; they should collaborate with criminal attorneys to identify which services clients need the most. Immigration status, child custody, public benefits, mental health, employment, housing, and student loans rank among the most frequent categories of collateral consequences. At The Bronx Defenders, this first pillar is best embodied by our interdisciplinary team model. Each team includes staff from a variety of practice areas, as well as a team coordinator who performs administrative functions. When an individual becomes our client, she enjoys the representation and support of attorneys and advocates specializing in every type of issue for which she might need assistance. If an allegation drags a client into family court, criminal court, and a civil hearing, members of that client s team will represent her at every step of the way. Our Arraignment Checklist, which every attorney uses when first meeting a client, ensures that attorneys ask the right questions and capture the full range of each client s legal and social service needs. By gathering this information at the outset, lawyers and advocates are able to collaborate immediately and work with clients to establish a joint legal strategy. Our advocates also ensure seamless access to a wide array of services by establishing positive working relationships with local churches, shelters, medical clinics, and food pantries. Furthermore,
16 16 Management Information Exchange Journal Holistic Defense Continued from page 15 we look for innovative ways to expand our in-house services and advocacy through volunteerism, internships, organizing efforts in the community, and the use of non-attorney advocates who represent clients in a host of civil, administrative proceedings. 2. Dynamic, Interdisciplinary Communication The second pillar of holistic defense is dynamic, interdisciplinary communication. This may seem obvious, especially given that the first pillar involves communication. However, busy schedules and heavy caseloads will quickly become an impediment to this goal unless there are clear and effective methods for communication and collaboration. Dynamic, interdisciplinary communication is crucial for facilitating the other three pillars of holistic defense. At The Bronx Defenders, senior members of our staff serve as team leaders and hold regularly scheduled meetings to discuss both specific cases and general concerns. Additionally, the physical layout of our office promotes communication between team members. Rather than divide the office by practice area, we organize our desks and offices by team. Cubicles within each team are arranged so that staff members sit adjacent to colleagues whose areas of expertise differ from their own. A civil attorney needs only to lean over the edge of her cubicle in order to learn from a criminal defense attorney, investigator, social worker, or family defense attorney. If a team member is at court rather than at the office, the other members of his team can use voice messages and s to keep him up-to-date with any developments in a client s case. 3. Advocates with an Interdisciplinary Skill Set In addition to communicating with their fellow team members, individuals working in holistic defense should spend time studying the basics of their team members fields of expertise, and should shadow their team members whenever possible. Attaining even a basic understanding of the technical complexities involved in each type of issue that affects clients will make it much easier for advocates to fulfill the first two pillars of holistic defense. At The Bronx Defenders, we created and continually update an interdisciplinary training program for our advocates. Additionally, we look for creative ways to allow our staff to shadow their colleagues. We encourage social workers, investigators, and other non-attorney staff to argue on behalf of our clients to judges and prosecutors. If a client is facing trial in criminal court and housing court on account of the same allegations, a criminal defense attorney might sit co-counsel with a civil attorney. 4. A Robust Understanding of, and Connection to, the Community Served The fourth pillar of holistic defense involves cultivating a strong and enduring relationship with the community served. Working together with the community as a whole is critical both for understanding clients needs and for achieving long-term reform. Both attorneys and nonlegal staff can help foster a positive relationship with the surrounding community by conducting workshops for local residents, holding community intake hours, and engaging in community organizing and policy advocacy. Everyone at The Bronx Defenders pitches in to help build meaningful connections to the South Bronx community. We hold monthly Know Your Rights workshops and visit local churches, schools, and other community organizations to speak about our work. We also host community intake eight hours each day, five days a week. At any point during community intake, individuals can walk into our reception space without an appointment and speak with an attorney or an advocate. When clients are arrested or have their children taken away, they can call our 24-hour hotline and speak to an attorney. We also use efforts to connect with the community as another opportunity to foster interdisciplinary work. For example, each interdisciplinary team is responsible for an annual community outreach initiative, and our Director of Policy and Community Development organizes trips to city hall and the state capital to campaign for policy reform. Recently, The Bronx Defenders founded Reentry Net, a legal education program that helps public interest attorneys better understand the barriers to reentry that their incarcerated clients face. We also joined Communities United for Police Reform, a coalition of social justice organizations campaigning to institute critical police reforms in New York City. Finally, our two major annual events a summer block party and a Thanksgiving dinner allow us to get to know our clients in a more relaxed setting. Several local organizations set up tables at our block party and use the event as an opportunity to meet new clients in the community. Continued on page 26
17 special feature: Public Defense/CIvil Legal Aid Delivering on Justice Criminal Debt in Philadelphia: A Case Study of Client Need Driving Individual Representation and Systemic Advocacy By Rebecca Vallas, Staff Attorney/Policy Advocate 1 Community Legal Services Note from the Journal Committee: This article is an adaptation of Rebecca Vallas and Roopal Patel, Sentenced to a Life of Criminal Debt: A Barrier to Reentry and Climbing Out of Poverty, 46 Clearinghouse Review: Journal of Poverty Law and Policy 131 (2012) 2012 Sargent Shriver National Center on Poverty Law. Sammy is a 53-year-old African American man living in Philadelphia. He battled a drug problem earlier in life and served time in the mid-1990s. Once released, he kicked his drug habit and has now been clean for many years. But for all his efforts, he has never truly been able to get back on his feet. With his criminal record, he has been unable to find stable employment since being released from prison. However, he is ineligible to apply for a pardon because he faces several thousands of dollars in criminal debt. Without any source of income, he cannot even afford to make modest installment payments toward his debt. Like hundreds of thousands of others in Philadelphia and millions more nationwide, he may have served his time but he is far from paying off his debt. States are increasingly shifting the onus of revenue generation for their courts and criminal justice systems to those accused or convicted of crimes. Across the board states are imposing more and more costly criminal justice related debts on individuals arrested or sentenced for crimes and in most cases without regard for individuals ability to pay. 1 These debts have the effect of extending criminal sentences long past their intended duration, as well as hobbling ex-offenders chances at successful reentry and rehabilitation, and transforming punishment from a temporary experience to a long-term, even lifelong status. Criminal debt, often called legal financial obligations or monetary sanctions, refers to the array of court costs, fines, fees, restitution debts, and bail forfeitures that are imposed on individuals accused or convicted of criminal offenses. While these debts can appear modest in isolation $25 here, $40 there they commonly add up to many hundreds if not tens of thousands of dollars. A report by the Brennan Center for Justice profiled a Pennsylvania woman convicted of a drug crime and sentenced to a term of three to twenty-three months of imprisonment, a $500 fine, and $325 in restitution. 2 She also incurred twenty-six separate fees totaling $2,464 three times the amount of her fine and restitution. In addition to adding new categories of criminal justice fines and fees, increasing the amounts of existing fees, and implementing so-called pay-to-stay fees to charge inmates for jail time, many Criminal debt, often called legal financial obligations or monetary sanctions, refers to the array of court costs, fines, fees, restitution debts, and bail forfeitures that are imposed on individuals accused or convicted of criminal offenses.
18 18 Management Information Exchange Journal Criminal Debt in Philadelphia Continued from page 17 jurisdictions, such as Philadelphia, are also significantly heightening collection efforts, chasing after a population that is largely unable to bear the debt. An Area for Civil Legal Services? Having a criminal history has in effect become a long-term legal disability that impedes reentry and prevents millions of Americans from moving on with their lives. While criminal debts stem from arrest or conviction in most cases, they carry significant civil collateral consequences and serve as a substantial barrier to reentry, preventing many individuals from obtaining employment, housing and public assistance and from building good credit areas that fit squarely within the traditional scope of civil legal services practice. Employment. Most U.S. employers now use criminal background checks in hiring. 3 Many states prohibit individuals with certain types of criminal histories from occupational licenses or from working in certain fields or from both. 4 Accordingly, cleaning up a criminal record has become an essential prerequisite to securing gainful employment. Because satisfaction of criminal debts is frequently required before an individual may file for pardon or expungement, cleaning up a criminal record without paying criminal debts in full can prove impossible, leading to long-term and possibly lifelong entanglement with the criminal justice system even without the commission of new offenses. 5 Housing. Additionally, the landscape has long been bleak for individuals who have criminal histories and are seeking housing. Public housing authorities nationwide and increasingly private landlords as well utilize criminal background checks to screen applicants, and even a decades-old criminal history can function as an absolute obstacle for public housing. Many public housing authorities and private landlords now also use credit checks to screen applicants, making damaged credit due to criminal debt yet another obstacle to obtaining housing. Public Assistance. Criminal debts can serve as a barrier to accessing public assistance as well, with the perverse effect of depriving struggling individuals of their only means of making payments toward their criminal debt obligations. State assistance programs often require compliance with payments toward criminal debts. 6 Many states require payment of criminal debts as a condition of probation and parole. Nonpayment can thus result in a violation of probation or parole, which can lead not only to reincarceration but also ineligibility for federal public assistance programs such as Temporary Assistance for Needy Families (TANF), Supplemental Nutrition Assistance Program (SNAP, formerly the Food Stamp Program), Social Security Disability Insurance, and Supplemental Security Income (SSI) for low-income seniors and people with disabilities. 7 Unlike civil debt, criminal debt is unlikely to be discharged in bankruptcy. It is also frequently not subject to statutes of limitation. And while an array of legal protections shield consumers from usury, harassment, and other aggressive collection practices by civil debt collectors and payday lenders, these legal protections frequently do not apply to criminal debt. Many statutes authorizing the imposition and collection of criminal justice-related debts explicitly define them as not debts, thereby placing them outside the reach of the Fair Debt Collection Practices Act and other protective laws. Moreover, many statutes governing criminal debt authorize extraordinary collection remedies, such as wage and tax garnishment in some cases without limit. The population facing criminal debts is considerable and increasing in number. Between 1980 and 2007, in the United States the number of individuals who were incarcerated or on probation or parole skyrocketed from approximately two million to more than seven million. The share of U.S. adults living behind bars is more than one in one hundred a rate that exceeds that of any other nation. More than ten million individuals emerge from jail or prison each year, and millions more finish terms of probation or parole. The vast majority will face criminal debts. Countless more individuals face criminal-debt burdens even without a conviction. In many states, failure to appear in court can result in forfeiture of an entire bail assessment a debt in the thousands, if not tens of thousands, of dollars. Many Philadelphians are facing multiple bail forfeitures, resulting in debts of $50,000 or more in many cases. Criminal debt is largely a poor person s problem, affecting a significant and growing share of the legal services client community. Some eighty percent to ninety percent of U.S. criminal defendants are poor enough to qualify for indigent defense. Between fifteen and twenty-seven percent of persons leaving prison expect to go to a homeless shelter when they are released, and as many as sixty percent remain unemployed a year after release from prison. About
19 Fall seventy percent of Philadelphians facing criminal debt collection are low income, elderly, disabled, receiving public assistance, unemployed, or without a source of income and more than one in five Philadelphians is currently facing collections for criminal debts. 8 Many legal services programs (including Community Legal Services) have stretched their practices in recent years to include representation of people with criminal records, in recognition of the civil collateral consequences and obstacles to reentry. Representation and advocacy around criminal debts represents a logical and urgently needed next step in states and jurisdictions where client need demands it. Criminal Debt Collections: The Philadelphia Story Sammy was one of hundreds of low-income Philadelphians facing criminal debt collections who came to Community Legal Services of Philadelphia (CLS) seeking help. As it turned out, Philadelphia s courts had just launched a major effort to collect criminal debts back to 1971, from more than four hundred thousand, or one in five Philadelphians, in response to a series in the Philadelphia Inquirer criticizing the courts for uncollected debts. Many of the debts are decades old, with the courts never having made an attempt to collect until now. Due to a long and well-known history of poor record keeping, a considerable share of the criminal debts is of questionable accuracy. CLS has a long history of advocacy on behalf of people with criminal records. 9 The direct impact of criminal debts on reentry, pardons and expungements, and public benefits eligibility made representation of individuals facing criminal debts a natural expansion of that work. Because this issue did not fall neatly into any one civil practice area, learning the relevant law and developing an approach for individual case handling has been a cross-cutting, collaborative enterprise within CLS, including advocates from the organization s employment, public benefits, consumer law, aging and disabilities, and intake units. Since the launch of Philadelphia s aggressive criminal debt collections effort, CLS attorneys have represented hundreds of individuals facing criminal debts, with great success. We have successfully petitioned for reduction and vacation of bail judgments for more than a hundred clients facing bail forfeitures (often for $50,000 or more and of questionable accuracy). We have petitioned for the reduction and waiver of probation/parole supervision fees for more than a hundred clients against whom they were sought in error, or where clients were eligible for hardship waivers. We The direct impact of criminal debts on reentry, pardons and expungements, and public benefits eligibility made representation of individuals facing criminal debts a natural expansion of that work. have helped obtain affordable payment plans for hundreds of clients from whom the courts have sought crushing monthly payments often as high $100 or more. As with many areas of our practice, CLS s limited resources make representation of 400,000-plus lowincome Philadelphians an impossibility. CLS s individual representation of clients facing criminal debt collections has served as an opportunity to advance critical systemic advocacy in this area. In partnership with the Defender Association of Philadelphia, the Pennsylvania American Civil Liberties Union (ACLU), the Brennan Center for Justice, the Vera Institute on Criminal Justice, the civil and criminal bar, an array of local social service providers, state legislative offices and the City Council, and the Courts, we have spearheaded a threefold advocacy campaign: (1) direct representation of individuals facing criminal debts, (2) broad-based systemic advocacy informed by individual representation, and (3) raising public awareness. This multi-forum campaign has aimed to improve policy at the state and local level, to enable pro se individuals to know their rights and to expand access to representation and assistance beyond CLS s limited capacity. One area in which our individual representation has created an opportunity for systemic reform is through individual appeals of denied petitions to vacate or reduce bail forfeitures. Favorable state appellate court rulings could accomplish a great deal in the way of system-wide reform on both substance and process. At the time of writing, we have approximately one dozen strategically-selected appeals pending at the state appellate court, and arguments in the first case have been scheduled. In addition, we have sought to effect broader systems reform by interfacing with court administration and the City through negotiations, roundtable discussions, and position papers, using our on-theground experience representing individuals facing
20 20 Management Information Exchange Journal Criminal Debt in Philadelphia Continued from page 19 criminal debts to inform specific recommendations as well as broader policy goals. 10 This advocacy has yielded reforms such as enabling public benefits applicants or recipients quickly to obtain affordable monthly payment plans so that they can qualify for benefits; the establishment of a remote payment plan process for individuals unable to appear in court due to disability, illness or other hardship; making payment and bail hearings fairer and more accessible for low-income pro se individuals; and the creation of a process for individuals no longer on probation or parole to seek hardship waivers of old supervision fees. 11 CLS continues to advocate for the City to exercise broad forgiveness of old, uncollectible debt on the grounds of fairness to individuals as well as being a cost-benefit to the City. In advocacy circles and within the community, CLS has also sought to raise awareness of individuals rights in this area. Ever aware of our inability to represent more than a fraction of the individuals in need of help, we have conducted dozens of training sessions and extensive informational and training materials; created a City-wide listserv and website to disseminate information and updates; and provided extensive technical assistance to other advocates and state legislators in hopes of expanding access to representation and nonlawyer assistance as well as facilitating pro se advocacy. 12 We have partnered with the Pennsylvania ACLU to provide lawyer-on-the-spot assistance at payment plan conferences and are currently working with them to build a pro bono supervision fee representation project. CLS has also garnered local, national and even international media coverage depicting the hardship faced by low-income people with criminal debts and systemic problems within the collections effort capturing the attention of policymakers at the highest levels of court and city leadership. 13 Every aspect of our work in this area has been driven by client demand low-income Philadelphians facing criminal debts continue to seek our services in great numbers on a daily and weekly basis making it a prime example of how legal services programs are uniquely situated to respond to client need and to marry individual representation with broader systemic advocacy on behalf of our clients. 1 Rebecca D. Vallas joined Community Legal Services in 2009 as a Skadden Fellow, funded to represent lowincome seniors and people with disabilities in SSI and Social Security-related matters. She was subsequently awarded the Borchard Fellowship in Law and Aging to continue her work with this population. In addition to direct representation of low-income seniors and people with disabilities, she is actively engaged in national advocacy to strengthen and preserve the Social Security disability programs. In addition, Rebecca has a special interest in helping individuals with criminal backgrounds access public benefits and overcome other criminal history-related obstacles to reentry, and is a frequent trainer on the topic of getting benefits with a record. She has been engaged in systemic advocacy on behalf of individuals facing criminal court debts since Philadelphia began aggressive collection efforts in 2010, and is the author of an article on the subject in Clearinghouse Review. Rebecca is a graduate of the University of Virginia School of Law, where she was elected to the Order of the Coif. She was named one of Forbes Magazine s 30 Under 30 for Law and Social Policy in Rebecca may be reached at 2 See Alicia Bannon et al., Brennan Center for Justice at New York University School of Law, Criminal Justice Debt: A Barrier to Reentry (2010), CriminAmerican Civil Liberties Union, In for a Penny: The Rise of America s New Debtors Prisons (Oct. 2010), Alexes Harris et al., Drawing Blood from Stones: Legal Debt and Social Inequality in the Contemporary United States, 115 American Journal of Sociology 1753 (2010). 3 See Sharon M. Dietrich, When Your Permanent Record Is a Permanent Barrier: Helping Legal Aid Clients Reduce the Stigma of Criminal Records, 41 Clearinghouse Review 139 (July Aug. 2007), clearinghouse_review_dietrich. 4 See, e.g, Amy Hirsch et al., Center For Law and Social Policy: Barriers Facing Parents with Criminal Records (2002), (helpful overview of state prohibitions on employment and licensure for individuals with criminal records). 5 The bar to expungement can be a practical one rather than a legal prohibition e.g., in Pennsylvania the courts frequently refuse to perform the final steps of an expungement the actual removal of the notations from an individual s criminal history if there is any money owing on criminal debts, even for other cases than the one for which expungement is being sought (Interview with Sharon Dietrich, Managing Attorney for Employment and Public Benefits, Community Legal Services, Philadelphia, Pennsylvania (March 6, 2012); see also Harris et al., supra note 1, at
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