1,500 Affordable Housing Units Headed for Baltimore Could Multiply

Originally published in Next City on October 24, 2017.
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The state of Maryland announced in October it would provide 1,500 new affordable housing opportunities in high-opportunity parts of the Baltimore region, a victory for fair housing advocates who filed a federal complaint with HUD in 2011.

The complainants alleged that Maryland administered its Low Income Housing Tax Credit (LIHTC) program in a discriminatory way, steering families with children into high-poverty, black neighborhoods, while building a disproportionate number of affordable units for seniors, especially white seniors, in the predominantly white suburbs.

This legal settlement not only requires Maryland to build new units, but also to offer incentives to developers to build affordable family-size housing, and to consider subsidizing transportation alternatives in areas that lack quality public transit.

Fair housing advocates say that getting 1,500 affordable units off the ground will make it significantly easier to build even more units in high-opportunity areas going forward.

“Once you knock down these barriers, once the development community starts changing its business model to incorporate looking for sites in high-opportunity areas, once the units get built and the sky doesn’t fall — the political opposition tends to lessen,” says Barbara Samuels, a fair housing attorney with the ACLU of Maryland. “It builds up its own momentum, and we see these 1,500 units as a step that will lead to other future steps.”

The coalition that filed the complaint, the Baltimore Regional Housing Campaign (BRHC), didn’t expect their efforts to take as long as they did, but they did expect an administrative complaint to move faster than filing a lawsuit.

In 1995, the ACLU of Maryland filed a federal suit taking aim at Baltimore’s racially segregated public housing. Though the court eventually ruled in favor of the plaintiffs, and as part of the legal remedy Baltimore has established one of the most successful housing mobility programs in the U.S., the case didn’t settle until 2012; the lawsuit approach took 17 years.

Meanwhile, the last two decades have brought about increased attention to segregation in the LIHTC program. Florence Roisman, a law professor at Indiana University, published a law review article in 1998 arguing that the LIHTC program, which is run by the Treasury Department, not HUD, was operating outside the confines of civil rights law. As LIHTC is the largest federal program to subsidize place-based affordable rental housing, Roisman urged corrective action.

In 2002, the Connecticut ACLU sued the state’s housing finance agency, arguing that LIHTC units in Hartford led to increased racial segregation, in violation of state law. In 2004, fair housing advocates in New Jersey sued their state, saying its LIHTC policies encouraged racial segregation, in violation of the Fair Housing Act. These and other developments influenced advocates in Maryland, who convened in early 2006, to explore what barriers prevented LIHTC units from being developed in higher-opportunity areas of their state.

It became clear then that one of the largest impediments standing in the way was Maryland’s policy of requiring local officials to sign off on LIHTC development, effectively empowering politicians with a pocket veto, no matter how important the affordable housing project was. A HUD study published in 2015 and conducted by New York University’s Furman Institute singled out Maryland’s local approval policy as one that led to notable increases in LIHTCs being deployed to develop housing in poor neighborhoods. Advocates tried to pressure Maryland to abandon this policy, but when efforts at voluntary persuasion failed, the BRHC filed its complaint.

In 2014, in response to the complaint and increased local advocacy, Maryland’s legislature opted to get rid of its local veto requirement. As part of the new legal settlement announced this month, the state has agreed to never reinstate it.

“If we can accomplish all this here, we can do it anywhere,” says Samuels. “You don’t need to go back far to remember when Baltimore was known as the city that killed [the] Moving to Opportunity [program].” Moving to Opportunity was a housing experiment that ran from 1994 to 1998 and involved moving individuals out of high-poverty areas with vouchers into low-poverty census tracts, to see how this would improve their lives. But politicians and racist homeowners in suburban Baltimore County rebelled early on, and U.S. Senator Barbara Mikulski of Maryland led the effort to kill funding to expand the program nationally.

Now, though, Maryland has a well-regarded mobility program, revamped LIHTC policies as a result of the BRHC fair housing complaint, and in 2016, Baltimore County settled another fair housing complaint, agreeing to spend $30 million over the next decade to support developers building 1,000 affordable units in higher-income neighborhoods. Baltimore County also agreed to establish its own mobility program, to assist families in predominantly black, poor neighborhoods in relocating to more affluent suburbs.

In 2015, a team of Harvard researchers published a study examining the long-term impacts of the Moving to Opportunity program. They found that poor children who moved to better neighborhoods were more likely to attend college and earned more in the workforce when compared to similar adults who hadn’t moved. The researchers also found that of the nation’s 100 largest counties, Baltimore ranked last in terms of facilitating upward mobility — partly due to its high degree of racial and economic segregation. Fair housing is no silver bullet, but Maryland’s renewed commitment to integrated housing is a bright spot for civil rights.

Baltimore’s Criminal Justice System Is Seriously Overloaded Thanks to the Arrest of Protesters

Originally published in VICE on May 1, 2015.
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Four days after Maryland Governor Larry Hogan declared a state of emergency, and three nights into the citywide 10 PM to 5 AM curfew, Baltimore lawyers and activists are beginning to grapple with exactly how the official response to unrest over the death of Freddie Gray has impacted protesters’ constitutionally protected legal rights.

Perhaps the most controversial decision of the past few days came on Tuesday, when Hogan suspended a state rule that requires an individual to be brought before a judicial officer or released from jail within 24 hours following their arrest. The decree paved the way for arrestees to languish in jail for up to 47 hours without charges. The Maryland Public Defender’s Office issued a statement Wednesday challenging Hogan’s legal authority to tell the judiciary what to do.

That night, 101 of the 201 arrested protesters were released from jail without charges. At a press conference earlier Wednesday, Baltimore Police Captain Eric Kowalczyk said his department had struggled to file formal charges against the protesters because officers were so busy responding to emergencies elsewhere; he insisted that charges would still be filed at a later date.

“On a normal day, if I’m a patrol officer and I was filing a charge, it could take upwards of two hours,” Sarah Connolly, a Baltimore Police spokeswoman, told VICE. “But when you’re having multitudes of arrests, and when you are working to ensure the preservation of life and property, which was paramount, it just wasn’t possible [to file all the charges.]”

Natalie Finegar, the Baltimore Deputy District Public Defender, told VICE that Hogan’s order is a clear instance of the executive branch overstepping its legal bounds. She notes that there is already a judicial provision within the Court of Appeals to change the 24-hour detention rule in the case of an emergency. Hogan’s executive order, Finegar contends, demonstrates disregard for the checks and balances of the legal system.

Other experts point out that holding uncharged people in jail is simply bad policy regardless of the legality, especially in this fraught political moment. “If the citizens of Baltimore are reacting [on the streets] to longstanding systemic issues, then dealing with arrestees in a systematically unfair manner, like leaving people in jail without charges, doesn’t really seem to be an effective response,” said Cherise Fanno Burdeen, the executive director of the Pretrial Justice Institute, a nonprofit committed to pretrial justice reform.

Another reason few charges were filed this week is because Baltimore’s district courts closed after Monday’s riots. In Baltimore City, courts close fairly frequently for all sorts of reasons, including snow days; the judiciary decides when to close the courts. On Tuesday, none were open, and on Wednesday just one out of four was operational—creating a serious backlog for cases that would have normally been divvied up. (By Thursday, all four district courts had reopened.)

“Courts are not supposed to shut down, especially when you’re arresting hundreds of people in a moment of crisis,” said Alexandra Natapoff, a professor at the Loyola Law School in Los Angeles. If people are being arrested, courts should be open to handle the cases. The wheels of justice should continue to spin equally for everyone at all times.”

In light of Hogan suspending the 24-hour rule, Finegar told VICE that her office filed 82 habeas corpus petitions on behalf of detained arrestees. (The Guardian had previously reported that Hogan had effectively suspended the state’s habeas corpus law, but this is misleading, as state and federal habeas corpus laws—which gives detainees the ability to seek relief from unlawful imprisonment—are unchanged.) However, before those habeas corpus petitions could be ruled upon, the city released the remaining uncharged protesters in a nod to the fact that they no longer had the authority to detain them. Finegar believes that many who were released on Wednesday were illegally held in the first place.

Another issue is that many arrested protesters were given extraordinarily high bail amounts. Some were apparently even asked to pay their bail all at once, in cash—which is notable given that detainees usually have the option to pay deposits or to take out loans from bondsmen.

“For my clients, a $50,000 cash-only bail is tantamount to no bail,” said Finegar. “I’m a nice middle-class public servant and even I couldn’t post something like that.”

“What is unconstitutional is using money to detain and deprive an individual of due process,” Burdeen added. “And yet that is essentially what is happening here.” TheGuardian reported on one case where a 19-year-old had bail set at half a million dollars. The defendant, who failed to produce the money, was then sent to jail. Generally speaking, if a detainee cannot make bail and cannot take out a loan, then they will essentially serve a jail sentence before even being found guilty of a crime. According to Finegar, that could mean sitting in jail for anywhere from 30 days to a year.

On Thursday afternoon, ACLU-Maryland’s legal director Deborah A. Jeon sent a letterto Baltimore Mayor Stephanie Rawlings-Blake calling for an end to the citywide curfew. “We have a right to demand policy changes of our government…. and we have a constitutionally protected right to do so on the streets and sidewalks of Baltimore.” Jeon added that at this point the curfew’s “unnecessary restrictions” seemed to do more to stoke community resentment than to ensure public safety.

The curfew is a First Amendment issue more so than a criminal one. And First Amendment decisions are often seen as balancing acts between the need for public safety and to protect one’s right to protest, move, and assemble. “It has to be a reasonable balance, and whether this curfew is a reasonable one is subject to debate,” said Eve Brensike Primus, a University of Michigan law professor.

In a Thursday evening press conference, Baltimore Police Commissioner Anthony Batts said that despite the city’s relative calm, they would not be lifting the curfew this weekend because there are large protests planned. “We have a lot more protests that are popping up by the minute, and even if we didn’t, we have other cities that have large protests and their activities impact our city too,” said Batts.

The argument that Baltimoreans should be kept under curfew because protests are happening in other cities certainly raises some serious constitutional questions.

Activist groups are responding to these issues; the Ferguson Legal Defense Committee is operating a jail support hotline. On Wednesday night, the Public Justice Center (PJC), a Baltimore-based legal advocacy organization, held an event to train lawyers, law students, and legal experts in jail support and legal observing for demonstrations. Nearly 50 people showed up, which, according to PJC attorney Zafar Shah, was beyond the group’s expectations. “There wasn’t enough seating,” he said. In addition, Maryland Public Defender Paul B. DeWolfe issued a call for private lawyers to help represent the 201 protesters arrested on Monday night. DeWolfe told the Daily Record that many private attorneys have offered their services.

Of course, it’s safe to say a few well-intentioned lawyers are unlikely to change the game here.

“Yes there will be lawsuits, and appropriately so, but we can’t rely on them to fix the underlying problem,” said Natapoff. “We have to look beyond the law if we want to really reform the criminal justice system. That’s why these protests all over the country are so important.”

The threat to Internet privacy

Originally published in the Baltimore Sun on January 31, 2013.

This week, the United States, Canada, and the 27 countries in the European Union “celebrated” Internet Privacy Day. However, it seems there is little to really celebrate; the past few years have given rise to the largest increase in electronic wiretapping our nation has seen. To be sure, access to information is important for fighting crime and terrorism. However, because the major laws that govern Internet privacy were written in 1986, they fail to protect the modern-day security needs of American citizens. And despite Barack Obama’s campaign promises in 2008 to repeal policies that violate civil liberties, his administration is now not only supporting them but also quickly expanding their presence within the digital world.

The 1986 Electronic Communications Privacy Act (EPCA) was enacted before social networking sites were invented, and before the everyday use of email, Internet and cellphones. Thus, there are many unsettling constitutional quandaries that Congress simply could not have anticipated 27 years ago. For example, the bill says that the Fourth Amendment, which guards against unreasonable searches and seizures, applies to digital files — but only if they are not given to a third party. Yet third-party entities such as Google, Facebook and Dropbox hold some of our most private communications on their servers. The structure of the law as it is written gives more privacy protection to a yellow memo pad on your nightstand than emails on your Yahoo account.

In September, 2012 the ACLU released a report that stated the number of authorizations the Justice Department received to use “pen register” and “trap and trace” techniques on individuals’ email and network data increased 361 percent between 2009 and 2011. A “pen register” intercepts outgoing data from a phone or email account, while “trap and trace” intercepts incoming data. The ACLU also reports that the Justice Department used these measures to spy on phones 23,535 times in 2009 and 37,616 times in 2011, an increase of 60 percent.

Additionally, Google just released a report stating its company saw requests for information from the federal government increase by 70 percent over the past three years. In more than two-thirds of those cases, Google complied and released some amount of personal data. Sixty-eight percent of the requests Google received were through subpoenas, which typically do not require a judge’s approval. According to Google’s public statements, “Government agencies make requests … seeking information about Google users’ accounts or products. In [our] report, we are generally revealing statistics about demands in criminal investigations.”

To be sure, not all information requests are controversial, since these numbers reflect not only requests for “content” emails but also for basic subscriber information, which is not protected under the Fourth Amendment to begin with. Yet, while big companies like Google, Yahoo and Microsoft demand warrants for content requests, it is likely that smaller companies with less money for legal battles do not.

Google is not the only company facing a surge of government information requests. Verizon told Congress in 2007 that it received at least 90,000 such requests each year. And Facebook told Newsweek in 2009 that orders were arriving at the company at a rate of 10 to 20 a day. The number of requests and subpoenas has surely increased since then, but ultimately there exists no clear public mechanism to monitor exactly what information the government requests and receives from Internet companies. This is problematic.

The Obama administration has been too quiet on matters regarding digital security, and in situations where officials have spoken out, they’ve advocated for a greater ability to collect information, rather than less. In December, the administration reauthorized an extension of the Foreign Intelligence Surveillance Act, which allows the government to monitor overseas phone calls and emails without obtaining a court order for each intercept. While the law excludes Americans, there remains a lot of troubling obscurity as to the nature and execution of these powers. Additionally, the FBI has said that revising surveillance laws to make it easier to wiretap people who communicate online rather than by telephone is a top and urgent priority.

The FBI contends it is not seeking new, invasive powers but rather looking to keep its existing powers relevant in the modern age. However, the Obama administration, Congress and even the FBI have to work vigorously to protect the civil liberties and privacy of American citizens. As Internet Freedom Day (Jan. 18) and now Internet Privacy Day (Jan. 28) come and go, it is imperative that we actively seek to establish a clear and constitutional legal framework for the digital era.

The Threat To Internet Privacy

This editorial appeared in the Baltimore Sun on January 31, 2013.

This week, the United States, Canada, and the 27 countries in the European Union “celebrated” Internet Privacy Day. However, it seems there is little to really celebrate; the past few years have given rise to the largest increase in electronic wiretapping our nation has seen. To be sure, access to information is important for fighting crime and terrorism. However, because the major laws that govern Internet privacy were written in 1986, they fail to protect the modern-day security needs of American citizens. And despite Barack Obama’s campaign promises in 2008 to repeal policies that violate civil liberties, his administration is now not only supporting them but also quickly expanding their presence within the digital world.

The 1986 Electronic Communications Privacy Act (EPCA) was enacted before social networking sites were invented, and before the everyday use of email, Internet and cellphones. Thus, there are many unsettling constitutional quandaries that Congress simply could not have anticipated 27 years ago. For example, the bill says that the Fourth Amendment, which guards against unreasonable searches and seizures, applies to digital files — but only if they are not given to a third party. Yet third-party entities such as Google, Facebook and Dropbox hold some of our most private communications on their servers. The structure of the law as it is written gives more privacy protection to a yellow memo pad on your nightstand than emails on your Yahoo account.

In September, 2012 the ACLU released a report that stated the number of authorizations the Justice Department received to use “pen register” and “trap and trace” techniques on individuals’ email and network data increased 361 percent between 2009 and 2011. A “pen register” intercepts outgoing data from a phone or email account, while “trap and trace” intercepts incoming data. The ACLU also reports that the Justice Department used these measures to spy on phones 23,535 times in 2009 and 37,616 times in 2011, an increase of 60 percent.

Additionally, Google just released a report stating its company saw requests for information from the federal government increase by 70 percent over the past three years. In more than two-thirds of those cases, Google complied and released some amount of personal data. Sixty-eight percent of the requests Google received were through subpoenas, which typically do not require a judge’s approval. According to Google’s public statements, “Government agencies make requests … seeking information about Google users’ accounts or products. In [our] report, we are generally revealing statistics about demands in criminal investigations.”

To be sure, not all information requests are controversial, since these numbers reflect not only requests for “content” emails but also for basic subscriber information, which is not protected under the Fourth Amendment to begin with. Yet, while big companies like Google, Yahoo and Microsoft demand warrants for content requests, it is likely that smaller companies with less money for legal battles do not.

Google is not the only company facing a surge of government information requests. Verizon told Congress in 2007 that it received at least 90,000 such requests each year. And Facebook told Newsweek in 2009 that orders were arriving at the company at a rate of 10 to 20 a day. The number of requests and subpoenas has surely increased since then, but ultimately there exists no clear public mechanism to monitor exactly what information the government requests and receives from Internet companies. This is problematic.

The Obama administration has been too quiet on matters regarding digital security, and in situations where officials have spoken out, they’ve advocated for a greater ability to collect information, rather than less. In December, the administration reauthorized an extension of the Foreign Intelligence Surveillance Act, which allows the government to monitor overseas phone calls and emails without obtaining a court order for each intercept. While the law excludes Americans, there remains a lot of troubling obscurity as to the nature and execution of these powers. Additionally, the FBI has said that revising surveillance laws to make it easier to wiretap people who communicate online rather than by telephone is a top and urgent priority.

The FBI contends it is not seeking new, invasive powers but rather looking to keep its existing powers relevant in the modern age. However, the Obama administration, Congress and even the FBI have to work vigorously to protect the civil liberties and privacy of American citizens. As Internet Freedom Day (Jan. 18) and now Internet Privacy Day (Jan. 28) come and go, it is imperative that we actively seek to establish a clear and constitutional legal framework for the digital era.