The Democratic Party’s Most Confounding Primary

Originally published in The Intercept with Akela Lacy on July 28,2020.
—–

WHEN NEWS BROKE late last summer that Massachusetts Rep. Joe Kennedy was considering a primary challenge to Sen. Ed Markey, many political operatives reasonably asked … why? Elected to the House of Representatives in 2012, the most high-profile aspect of Kennedy’s political career had been giving the Democratic response to the State of the Union in 2018 — and, of course, being a Kennedy. Markey, meanwhile, wasn’t shrouded in any scandal and had recently introduced the Green New Deal resolution with Rep. Alexandria Ocasio-Cortez, an instant hallmark of progressive politics.

Polling voters, though, the answer is a little more evident. Last July, before Kennedy jumped in the race, a Boston Globe/Suffolk University poll showed that 45 percent of likely voters in the state were undecided about supporting Markey for reelection and 14 percent said they had never heard of him. By September, Boston Globe/Suffolk University released another poll finding Kennedy leading Markey by 14 points in a potential Senate head-to-head, and more Massachusetts voters viewed Kennedy as the more liberal candidate and a better fighter for Democratic priorities than Markey.

Soon after Kennedy announced his candidacy in September, progressive groups were quick to jump behind Markey. Markey has earned endorsements from a host of progressive organizations, ranging from national groups like Indivisible, the Sunrise Movement, and Planned Parenthood to teachers unions, peace groups, and environmental activists on the state level.

As the September 1 primary nears, progressives, many of whom are still mourning the losses of Sen. Bernie Sanders and Elizabeth Warren in the Democratic presidential primary, have turned their sights to saving Markey’s seat in the Senate — grateful for his early backing of the Green New Deal, which was unpopular among Democratic leadership in Washington when it was introduced. It doesn’t matter to them that Kennedy also supports the Green New Deal, and some view his recent announcement that his family trusts have divested from oil and gas stocks as too little too late. (In December, Markey’s campaign returned more than $46,000 from donors who didn’t meet requirements of the fossil fuel pledge, which both candidates signed.)

Many also suspect that Kennedy has decided to run for Senate because he’s calculated that it might be easier to unseat a 74-year-old incumbent now than it would be to beat Rep. Ayanna Pressley or Massachusetts Attorney General Maura Healey in an open primary six years down the road. Indeed, Kennedy’s stated rationale for entering the primary is a little fuzzy. Both candidates admit that when it comes down to brass tacks, they are in line on major issues. Kennedy’s case boils down to the idea that he thinks he could “leverage” the Massachusetts Senate seat better than Markey has. Senators have immense power beyond just voting on bills, Kennedy’s argument goes, and Markey hasn’t used his position effectively enough to serve the Democratic Party and the country.

The result is a Senate primary race that can best be described as pretty weird. On the one hand, there’s an incumbent who has served more than 40 years in Congress running as some kind of grassroots underdog. On the other hand, a literal Kennedy is claiming to be bullied by the political establishment and invoking language used by progressive insurgents who’ve sought new leadership to shake up the status quo.

There hasn’t been polling in the race since early May, when a UMass-Lowell poll showed the race had significantly tightened with Kennedy up by just 2 points. That, Markey’s campaign manager John Walsh argued, is because the progressive base has consolidated behind the senator. But another poll, conducted around the same time by Emerson College/7News, showed Markey trailing Kennedy by 16 points.

PROGRESSIVE ENTHUSIASM FOR Markey from both the activist community and left-wing media has at times led the left to go fairly easy on the senator for votes they’ve criticized other Democrats for. Over the years, like Joe Biden, Markey voted for the Iraq War, the Patriot Act, and the 1994 crime bill, and he opposed busing for desegregation in the 1970s.

When asked if he has any comments about these past votes, Markey told The Intercept that Black and brown men in the United States were “owe[d] a national apology” for the over-incarceration wrought by the 1994 crime bill, and said that’s why he’s co-sponsoring Sen. Cory Booker’s Next Step Act to overhaul the criminal justice system. Markey offered similar remarks when he announced his 2018 co-sponsorship of the First Step Act, a precursor to Booker’s bill: “The First Step Act is just the beginning of the national apology we owe to the generation of African-American men and women who lost their lives and futures in prison due to a few dollars of crack cocaine and an unjust War on Drugs.”

On Iraq, Markey says he “deeply regret[s] that vote” and blamed President George W. Bush for lying to Congress and the American people about nuclear weapons in the country. “I’ve worked every day to ensure we don’t have another needless war in the Middle East,” he said, though he voted “present” in 2013 on military intervention in Syria, saying at the time that he needed to study the issue further.

“Senator Markey has been on the cutting edge of progressivism in the Democratic Party for his entire career,” Evan Weber, political director of the Sunrise Movement, said in a statement to The Intercept, citing the senator’s early support for net neutrality and opposition to nuclear weapons. “Has every vote he’s ever taken over his long political career been perfect? No. But he’s often the person in his party forcing others to take hard or uncomfortable votes before positions become politically popular, creating the space and momentum for change.”

Though Markey has positioned himself as a stalwart leader of the progressive movement, and touted the significance of receiving progressive endorsements in his primary, the senator lacks a record of backing progressive primary challengers, something Warren and Sanders have embraced over the last few years. Unlike Warren and Sanders, for example, Markey stayed out of Charles Booker’s competitive Senate bid in Kentucky this year, and in his home state, he’s standing behind Rep. Richard Neal, despite Neal facing a much more progressive challenger in Alex Morse. Markey also didn’t endorse Pressley in 2018, though his supporters say it matters that he didn’t endorse Mike Capuano, the incumbent, either.

Back in November, a reporter pressed Markey about why he wasn’t supporting Morse, given that he supports the Green New Deal, and Neal doesn’t. “Ultimately he supports taking bold action on climate change and changing the tax code that makes [a Green New Deal] possible,” said Markey, defending his colleague. Markey and Neal both endorsed each other before Kennedy and Morse were running. “I like both candidates,” he added, referring to Booker and Morse. “On big votes Congressman Neal has been with me, but we have our differences.”

Kennedy hasn’t endorsed in the Morse/Neal contest either and told The Intercept that he plans to focus on his own race. Kennedy has also been criticized by progressive groups for endorsing the more moderate candidates in Massachusetts races in which progressive challengers were running.

“One thing we’ve pointed out is that in 2018, he had the choice to support progressive women of color — Ayanna Pressley and Nika Elugardo — but he didn’t,” said Jonathan Cohn, a leader with Progressive Massachusetts, a statewide advocacy group that has endorsed Markey. In those races, Kennedy endorsed incumbents Capuano and Jeffrey Sanchez, who both lost. (This cycle Elugardo has endorsed Markey, and Pressley is staying out of the race.)

EARLIER THIS WINTER, a Democratic activist in Massachusetts approached Kennedy after a campaign town hall and pressed him on why he was running. “With due respect to Senator Markey, who is a good man, there’s more to this job than the way you vote and the bills that you file,” Kennedy answered, as reported by Boston Magazine. “It comes with an ability to leverage that platform … and, with due respect to the senator, if you’re not going to leverage that now … then when?”

But has Kennedy “leveraged” his House seat to the best of his ability?

“I think I have,” he told The Intercept, though acknowledged that he’s “done it differently obviously” than star representatives like Pressley and Ocasio-Cortez. He credits those women for using their platforms to cast a spotlight on issues of importance. “I’ve tried to do that in a way that is most natural to me,” he said, and pointed to his fundraising trips throughout 2018 to help Democrats flip the House. Kennedy said this work helped flip the House in 2018 and in a recent debate, he brought up his fundraising for Covid-19 relief groups and legal defense for immigrant families.

“Let me be clear,” he added. “When I critique Senator Markey … I’m not saying in persona, experience, history, or policy that I would be the next AOC or Ayanna Pressley. Like that’s not who I am, that’s not the policy positions that I necessarily take.”

“The reason Joe can go around [fundraising] is because he’s Bobby Kennedy’s grandson,” said Walsh, Markey’s campaign manager. “It’s not because he’s ever led on a single issue since he’s been in Congress.” Kennedy countered that he’s proud of his leadership in areas around mental health and LGBTQ issues, and noted he spoke to Black Lives Matter and transgender rights in his 2018 response to the State of the Union.

Kennedy’s campaign said its polling shows Markey leading with more white, affluent voters, while Kennedy is doing better with middle-class and working-class white people, as well as Black and Latino communities. “We are proud of the broad and incredibly diverse base of support Joe has earned from communities of color to working-class cities and towns,” Kennedy’s press secretary, Brian Phillips Jr. told The Intercept. White, affluent voters tend to be more reliable Massachusetts primary voters, and so the Kennedy campaign is hoping for high turnout overall. “If you look to more moderate and conservative Democrats, they’re with Joe,” said Walsh.

Kennedy, who recognizes that he comes to this race with wealth and a dynastic political history, still feels like he hasn’t really been given a fair shake by the left. Progressive media has gone after Kennedy for working for Michael O’Keefe, a conservative, tough-on-crime district attorney on Cape Cod. “Why did Joe Kennedy … choose in 2009 to help cage his indigent neighbors under the leadership of O’Keefe?” asked The Appeal’s Will Isenberg. The Nation’s Maia Hibbett said Kennedy would have been “collecting quality-of-life fines, securing low-level drug convictions, and evicting families from their homes” during his time as a prosecutor.

Kennedy told The Intercept that he did not handle eviction cases, as those are civil suits, and that his time was spent primarily on DUIs, assault and battery charges, domestic violence, and opioid and mental illness drug cases. “The idea that your liberal ideology has to be in accordance with your boss is an absurd position to take, because yeah I disagree with him, but my job wasn’t setting policy, it was implementing the laws that were actually uniform across the state,” he said. According to Kennedy, his nickname at the office was “innocence project” because of his commitment to criminal defense.

In May, Kennedy introduced a bill to establish a right to counsel for eviction, medical bankruptcy, and domestic violence cases — a decadeslong goal from the legal aid community. Yet he earned minimal progressive plaudits, perhaps because earlier that month he was ripped online for a tweet that said no patient should “be forced to fight off medical bankruptcy in the midst of a global health pandemic without a lawyer by their side.” (The next day he clarified, “Let me be clear here: We need Medicare for all. We need an end to medical bankruptcy. … But until we get there, we need assurance that every patient will have access to legal counsel and aid if they are forced to fight their insurer in court.”) Kennedy has also been blasted by progressives for not co-sponsoring former Rep. John Conyers’s original Medicare for All bill in the House, but he said he was “proud” to co-sponsor Rep. Pramila Jayapal’s version, which builds upon earlier proposals from Sanders and Conyers, after working with her to ensure that it would cover abortions and long-term care.

“Senator Markey has over the course of the past several months gone much further left than he ever has,” Kennedy told The Intercept. “The progressive world has consolidated around him to make him the progressive in the race and tried to make me a mealy-mouth moderate who is running on ambition and my name, which has been frustrating to say the least.” Kennedy said he wants more of an honest conversation about vote histories. “I looked at my record and what I’ve done and I’m just trying to say, ‘Hey, you want to have a debate about who is more progressive? Fine. I think the honest answer is there’s areas where Senator Markey has led, and there are areas I’ve led.’”

LAST WEEK, Kennedy’s campaign held a press conference with members of the Congressional Hispanic Caucus, who slammed Markey for his immigration record, pointing to a 2013 vote in which the senator broke with his caucus and the president to increase Immigration and Customs Enforcement’s detention bed quota. Kennedy later voted for an omnibus spending bill that included the quota, along with all but three other House Democrats.

Markey certainly rejects the idea that he hasn’t led in the Senate and ticked off a number of his biggest accomplishments, from increasing fuel efficiency standards to creating the largest federal program for low-income students to access internet at home. He feels his advocacy on issues like the climate crisis, net neutrality, and Medicare for All position him well to win his next election. “It’s not your age, it’s the age of your ideas that are important,” Markey said. “And in terms of the age of my ideas, I’m the youngest person in this race.”

Markey isn’t alone on shifting leftward over the course of this election cycle. Kennedy, whose grandfather was killed by a man who’s been up for parole many times in recent years, now supports eliminating life sentences without parole, although he said he wants to balance sentencing reform with the wishes of victims and their families. That’s a change from earlier this year, when he wrote in a February candidate questionnaire that he supported eliminating life sentences without parole for juveniles and nonviolent cases, and “heavily restricting,” but not eliminating, qualified immunity.

“I think my position on that has actually evolved since we even did that questionnaire,” Kennedy said. “I’ve thought about that one a lot. … I am comfortable now with the idea that people should be eligible for parole. … I also want to make sure victims’ voices and survivors’ voices are heard.”

At the end of the day, the Markey and Kennedy campaigns will have poured close to $20 million into a race that won’t help Senate Democrats add any seats in the chamber or markedly change the winner’s policy blueprint for the next congressional session. Kennedy has raised more than $7.8 million so far, and Markey — who out-raised Kennedy for the first time last quarter, according to his campaign — has raised more than $10.4 million to date. Both men cast their most recent fundraising hauls as evidence that their campaigns are surging.

Democratic Consulting Firm Teams Up with Hospital Industry To Battle Nurses Union

Originally published in The Intercept on October 19, 2018.
—–

The hospital industry has partnered with a major Democratic consulting firm in an unusual alliance against Massachusetts’s nurses and the bulk of its progressive infrastructure.

At issue is a ballot initiative that aims to improve patient safety by limiting the number of patients that can be assigned to a single nurse.

If passed, the initiative, known as Question 1, will make Massachusetts the second state in the country to have nurse staffing limits in place. (The exact nurse-to-patient ratio would vary depending on the hospital department.) But, as Election Day inches closer, the initiative’s supporters and opponents are engaged in a heated battle over the costs of implementing the initiative, and what it would mean for patients.

For more than two decades, nurses across the country have argued that they can’t do their jobs effectively — or safely — when they’re tasked with caring for too many patients at any given time, as is often the case. More recently, Rep. Jan Schakowsky and Sens. Barbara Boxer and Bernie Sanders have sponsored bills to establish “nurse staffing limits” in order to curb the number of patients assigned to nurses who work in hospitals and, thereby, improve care.

Most local labor groups and the Massachusetts Democratic Party have come out in support of Question 1. Its backers include Boston Mayor Marty Walsh; U.S. Sens. Elizabeth Warren and Ed Markey; and U.S. Reps. Katherine Clark, Jim McGovern, Joe Kennedy III, and Michael Capuano. A majority of likely voters polled by Suffolk University and the Boston Globe in mid-September supported the ballot initiative.

But a formidable opposition campaign, funded by the hospital industry and led by a prominent Democratic consulting firm, threatens to derail the nurse staffing effort. The opposition campaign, rallying under the banner of “the Coalition to Protect Patient Safety,” has raised more than $13 million since January; 95 percent of those funds have come from the Massachusetts Health and Hospital Association. Through an aggressive advertisement blitz, the coalition has worked hard to argue that Question 1 could destroy the state’s renowned health care system.

Republican Gov. Charlie Baker recently said he’ll be voting “no” on the measure, citing hotly disputed cost projections. Recent polling also reflects a shift in public opinion, suggesting that the opposition’s campaign is working. For the first time this year, polls now show that a majority of likely voters oppose Question 1, including a University of Massachusetts Lowell/Boston Globe poll from October that found 51 percent plan to vote against it.

The opposition campaign has led to confusion even among nurses, whose support for Question 1 has significantly declined. (There are 83,000 registered nurses in the state, though the ballot initiative would not affect all of them.) An April poll, commissioned by the Massachusetts Nurses Association, found that 86 percent of registered nurses planned to vote “yes” on the ballot initiative. But a new poll, published this week by WBUR, found that just 48 percent of nurses are backing Question 1, while 45 percent are opposed and 7 percent are undecided.

ONE OF THE biggest points of confusion right now is how much Question 1 would cost, with opponents and supporters battling back and forth with wildly different estimates.

A study conducted by Boston College nursing economist Judith Shindul-Rothschild found that the total cost of implementing the proposed nurse-to-patient staffing limits in Massachusetts would be about $35 million to $47 million per year, necessitating a 2-7 percent increase in the number of nurses employed. After studying data from the Massachusetts Health and Hospital Association and matching data comparing staffing levels and costs with the California hospital industry, Shindul-Rothschild concluded that most hospitals could easily comply with the law by shifting some money away from administrative expenditures. “At the end of the day, we estimate that after implementing the limits of Question 1 our state’s hospitals would still retain a mean profit margin of $15 million a year,” she told MassLive.com. Shindul-Rothschild is a former president of the Massachusetts Nurses Association, which backs Question 1.

But a report commissioned by the Massachusetts Health and Hospital Association puts the costs much higher, at $1.31 billion in the initiative’s first year and over $900 million per year thereafter. The report, published in April, argues that those costs would be paid by residents in the form of higher insurance premiums, copays, and taxes.

The opposition campaign got a boost in October, when the Health Policy Commission, a state agency charged with monitoring health care delivery in Massachusetts, put out estimates that Question 1 would cost somewhere between $676 million and $949 million per year. The Health Policy Commission is the agency that would be tasked with developing regulations to implement the law if it passed.

Question 1 supporters have called those Health Policy Commission figures bogus. In an interview with The Intercept, Shindul-Rothschild said the biggest difference between her figures and those calculated by the Health Policy Commission is that the commission’s model assumes that nurse staffing limits will produce far greater levels of wage inflation — upward of 6 percent. “Not only did they assume 6 percent wage inflation, but they assumed it for every nurse working in Massachusetts, regardless of if they work in hospitals or not,” she said. “They said if wages go up in hospitals, they’ll go up across the board for every nurse, no matter where they work. I’m a nurse on faculty at Boston College, and there’s no way they’re increasing my salary by 6 percent.”

One reason the Health Policy Commission’s model assumes greater wage inflation is based on what California experienced after it implemented nurse staffing ratios. But unlike California at the time, Massachusetts has a surplus of registered nurses, with 3,000 to 3,500 new ones graduating every year. Many of these nurses end up moving out of state because they can’t find local employment, and a 2012 report published in the American Journal of Medical Quality found that Massachusetts was one of just two states in the country to have no nursing shortage.

The Health Policy Commission’s analysis is “fully consistent with the HPC’s statutory purpose and mission and is not intended to promote or oppose the pending ballot question,” said spokesperson Matthew Kitsos.

But since its founding in 2012, the Health Policy Commission has not conducted similar studies for other ballot initiatives that could have impacted health care, and the commission has also stayed quiet on more than 300 bills in the Massachusetts legislature that would have affected health care cost and delivery. Kitsos did not answer questions about why the Health Policy Commission avoided past health care legislation.

The Massachusetts Nurses Association slammed the Health Policy Commission study. “The HPC didn’t use third-party validated data, it used hospital industry data which it specifically said it would not rely on for its own analyses of hospital mergers,” said Julie Pinkham, the executive director of the Massachusetts Nurses Association, which represents 23,000 registered nurses. “I don’t want them to do an analysis, because it’s not their role, but if they are going to do an analysis, then use actual, real-time staffing data.”

For Pinkham, the nurse staffing debate has been laced with sexism. “If there were 23,000 men saying, ‘Hey, look, this is unsafe,’ do you think they would make you wait over 20 years to fix it?” she asked. “They treat us like we’re just these nice girls, trying to do a nice thing, but that we don’t know what we’re talking about and can’t handle numbers.”

The debate over the cost of implementing a nurse staffing limit is unlikely to be settled prior to Election Day, but Massachusetts voters can look to California for an example of how such a policy would work. The Golden State passed a nurse staffing limit law in 1999, and it’s been in effect since 2004. The hospital industry, which bitterly fought the law’s passage in California, has successfully defeated similar attempts in other states since then.

Researchers have found that California’s law improved care — especially for poor patients — and contributed to a greater decline in mortality than other states have seen.

Linda Aiken, the director of the Center for Health Outcomes and Policy Research at the University of Pennsylvania School of Nursing, said California has “the best nurse staffing in the country” in terms of patient outcomes. One study Aiken conducted looked at how outcomes would change in New Jersey and Pennsylvania if they adopted California’s nurse-to-patient ratios; she determined that in-patient mortality would drop in those states by 10-13 percent.

“We’ve done many studies in the U.S. and around the world and found for each additional patient that a nurse takes care of at one time, there’s a 7 percent increase in the patient’s likelihood of dying,” she told The Intercept. “There’s good evidence that California’s staffing improved directly as a result of the [1999] legislation, and that over time it led to a greater decline in mortality in California compared to other states.”

What works in California won’t necessarily work the same way in other locations, but Aiken pointed out that Ireland and Wales have also followed California’s lead and adopted nurse staffing limits. She suggested that opposition in the U.S. is based more on ideological resistance to government mandates than anything else. There are some, however, who argue that the research evidence is not clear enough to justify changing policy. Hospital executives, including nurse administrators, generally oppose nurse staffing limits, arguing they’re too blunt of an instrument and hinder needed flexibility.

Dewey Square Group, a prominent political consulting firm that often works with Democratic candidates, liberal groups, and labor unions, is leading the opposition campaign. Consultants from the firm have been paid over $800,000 since April for their efforts, according to state campaign finance data.

Dewey Square is leading “a progressive campaign” that “helps people in need of quality, affordable, accessible health care along with the nurses and doctors who provide it,” said spokesperson Ginny Terzano. Their coalition comprises “more than 170 health care organizations and every hospital in Massachusetts,” Terzano added.

Among those groups is the Organization of Nurse Leaders, which represents 700 nurse administrators, and the Massachusetts chapter of the American Nurses Association, a group that, unlike most similar groups, has not disclosed how many registered nurses it represents. (The nurse trade group did not return The Intercept’s request for details.) Both groups have fought past legislative efforts to establish nurse staffing limits in Massachusetts.

In 2016, Dewey Square was hired by the Massachusetts Teachers Association to run a campaign on behalf of labor and progressive groups against a ballot measure that would have raised the state’s cap on charter schools. The measure, rejected by more than 62 percent of voters, failed. That the consultants who led the 2016 campaign on behalf of liberal groups are now leading the campaign against those same organizations has sparked intraparty turmoil in the state.

Barbara Madeloni, who stepped down as president of the 110,000-member Massachusetts Teachers Association this past summer, told The Intercept that she “doesn’t know how [Dewey Square consultants] sleep at night” while leading the opposition campaign. “The ways they’re running it, their comfort with distortions and misinformation, and that they’re aligning with people who are really looking to undermine the well-being of the patients of the commonwealth — well, they’re just exposing themselves as mercenaries,” she said. “Quite honestly, there’s a part of me that’s embarrassed to have ever worked with them.”

Terzano of Dewey Square dismissed the idea that their work opposing Question 1 puts them at odds with organized labor. “We may have a different policy position than some labor organizations on this issue but we continue to work alongside labor on a number of issues,” she said. “And I would say it’s also important to note that not every relevant labor union has taken a position on Question 1.”

Terzano was referring to 1199SEIU Massachusetts, which represents 60,000 health care workers in the state — and has notably taken a “neutral” position on the initiative. But even 1199SEIU hasn’t been sitting on the sidelines since the start. In fact, the union worked directly with the Massachusetts Nurses Association in July 2017 to draft the ballot initiative language. SEIU’s input resulted in language that ensures that the nurse staffing limits could not be implemented by eliminating other health care workforce jobs. (Administrative positions, however, may be reduced if the initiative passes.)

According to 1199SEIU President Tim Foley, the union’s change in perspective is due to “concerns about reforms not focusing on the staffing needs for the entire health care team as well as the potential unintended consequences on the health care workforce and health care services.”

SEIU nurses in California have come out in support of Question 1, saying that fears of health care workforce cuts in their state did not materialize after transitioning to nurse-to-patient ratios. In a recorded video, the executive director of the SEIU Nurse Alliance of California emphasized that no hospitals closed and no services ended as a result of implementing nurse-to-patient ratios.

Sal Rosselli, the president of the National Union of Healthcare Workers and the former president of the SEIU United Healthcare Workers West, the statewide local union for health care workers in California, also endorsed Question 1 in Massachusetts.

“Fourteen years ago, when our RN safe patient limits law was being passed here in California, many hospital executives were spouting the same line of doom and gloom as they are today in Massachusetts,” he wrote in a statement. “Our union represents mostly non-RN hospital workers. The truth is there were no layoffs of non-RN caregivers and no hospital closures as a result of California’s law. The only outcome was that it made care much better for patients.”

Madeloni, the former Massachusetts Teacher Association president, who now works as the education coordinator for Labor Notes, said “it’s really troubling” that 1199SEIU Massachusetts has not joined the coalition of labor groups on this. “Solidarity matters, and we should never accept a lack of funds and the incitement of fear that if some workers get something good to do their jobs well, that means other workers will lose. We engage the fights that are going to help each other, we do that however we can do it, and we don’t hold back.”

Welcome to the Courtroom That Is Every Renter’s Nightmare

Originally published in Next City (with illustrations by Sky Kalfus!) on September 14th, 2015.
——–
Deborah Jennings lives in a house in East Baltimore with her daughter and granddaughter. When she first moved in nearly five years ago, she was working as a nursing support technician, helping to draw blood. Hours were long, but she was able to pay her bills. That changed two years ago, when she became disabled and had to stop working. Without a steady paycheck, 57-year-old Jennings has struggled to pay her rent, and each month, that means a trip to rent court.

Each courtroom visit, the same complaints are made, the same issues described, and the same ultimatum given: Jennings must pay her rent or risk eviction. Although the conditions of her house are poor — the basement sink had water running for two months straight, paint hangs from her roof and water has settled in the ceilings — Jennings is in no position to negotiate. “You can start talking, but then the judges say, ‘I understand, but we’re here in reference to this rent, do you owe this rent?’ They don’t want to hear whether or not you have any issues,” Jennings says. “They don’t want none of that.”

“I’m not expecting to live here free,” she adds. “I said bear with me, you’re going to get your rent.”

Each year, Baltimore landlords file roughly 150,000 cases in rent court, which is housed in the District Court of Maryland. The city has 125,000 occupied rental units. Many tenants, like Jennings, are taken multiple times per year.

Despite its undeniable public impact, rent court remains one of city’s least transparent institutions. Any public records are hard to come by and in an era of metrics and open data, analysis of courtroom verdicts appears to be nonexistent.

“People know about it, but there’s no interest to understand why this keeps happening year after year,” says Zafar Shah, an attorney with the Baltimore-based Public Justice Center. “The whole system just does not function as it should.”

In the neighborhood of Oliver, where Jennings lives, nearly a third of families live below the poverty line, many of them on blighted blocks checkered with vacancy. Yet Oliver, along with other sections of Baltimore, is slowly beginning to see population trends reverse and new investment trickle in. With new residents and development come higher rents and more pressure for tenants like Jennings to pay up or get out.

“There is a lot of development in Oliver, a lot of new homeowners, but there are still a lot of people without a lot of money here,” says Darryl Dunaway, office manager and community organizer with the Oliver Community Association. “We hear about rent court all day. From 9 a.m. to 12, I am sending people down to 501 East Fayette Street for eviction prevention. I sent someone there this morning.”

Dunaway says that the community association and others like it around the city help as many people as they can each month, but there is only so much that can be done. “If you can’t pay one month, there is help. You come back next month and you are on your own,” he says.

Originally created to provide a nationwide model of justice for landlords and tenants, Baltimore’s housing court today serves as little more than a state-run rent collection agency, financed by taxpayers and the beleaguered renters themselves who pay court fees for each judgment ruled against them.

“The court system is not for the tenant,” says Jennings wearily. “It just becomes a money thing. It’s no longer about human beings.”

A Court Designed for Tenants

In 1936, the Baltimore Sun published a series of articles that illustrated some of the horrific conditions of Baltimore slums — where 40 percent of the city then lived. With the highest proportion of substandard housing among America’s big cities, local Baltimore officials moved to take action. But by 1941, unsatisfied with the city’s slow progress, some individuals formed the Citizens Planning and Housing Association to apply more pressure. What emerged in Baltimore — a campaign for new building and sanitation codes, and stronger mechanisms for enforcement — would eventually influence the wave of urban renewal across the country, as well as Dwight D. Eisenhower’s Federal Housing Act of 1954.

The Baltimore Plan, as it came to be known, was based on a model of setting — and vigorously enforcing — minimum housing standards. The hope was to one day clean up all of Baltimore’s slums; if some delinquent properties had to be removed, so be it. Besides beefing up the number of housing inspections, reformers also wanted to create a special housing court designed to enforce the new standards. Even in the 1950s, regular courts were fairly overwhelmed, and disputes like rental issues were simply low-priority cases. The idea was to create a new space where both landlords and tenants could come in and expect a fair and thorough hearing. The courts would hold landlords accountable to health and sanitation standards, while landlords could expect the backing of the court if tenants were damaging their property or failing to pay rent. Baltimore’s rental housing court would become the first of its kind in the country. Today, most cities have similar systems in place.

“It was supposed to be about fundamentally changing the way property relations work,” says Daniel Pasciuti, a sociologist at Johns Hopkins University who studies Baltimore’s rent court.

By the late 1960s and ’70s, widespread tenants’ rights changes were taking place all over the United States. In 1968, the Fair Housing Act became law, barring housing discrimination. Six years later, the federal government launched the Section 8 program, offering rental vouchers so eligible low-income tenants could live in private buildings, and in turn, requiring landlords to afford federally subsidized tenants a new set of rights. Perhaps the most notable reform, however, came from a federal ruling in 1970, Javins v. First National Realty Corp., where the D.C. Circuit ruled that if a living situation is deemed uninhabitable, the tenant is freed from his obligation to pay rent. This establishment of “the implied warrant of habitability” was widely seen as a revolution in landlord-tenant relations; it set the precedent for treating leases as contracts between landlords and tenants, a change considered to be more modern and fair. Tenants would now have the right to introduce evidence of housing code violations if they were sued for late rent, and if the living situation were found unacceptable, the tenant would not have to pay.

But in recent years, housing courts look less like the guardian against slum conditions imagined by New Deal-era advocates and far more like other municipal courts that target low-level offenders and focus disproportionately on the poor.

After visiting rent court in the 1990s, University of Maryland law professor Barbara Bezdek concluded that, beneath “the veneer of due process,” litigants “who are members of socially subordinated groups” are systematically excluded. Though rent court was originally meant to be an accessible space where tenants and landlords could speak directly to a judge without a lawyer, the reality is that the arrangement favors the landlords. Bezdek found that differences in speech, the effects of poverty and the unduly high hurdles tenants were asked to overcome to even raise a defense prevented them from being truly heard. All in all, Bezdek described the legal dynamics as “a charade.” In the two decades since, not much has changed.

A Judicial “Charade”

On a typical day in rent court, the average number of scheduled cases ranges from 800 to 1,000. Shah says the court’s “dirty little secret” is that it depends on the overwhelming majority of summoned tenants to not show up — meaning default wins for the landlord — because there’s no way judges could ever hear as many cases as they schedule. Mark Scurti, associate judge at Baltimore City’s District Court, agrees they would not be able to handle as many cases as they schedule if all tenants were to appear. “It would put a tremendous strain on our current staffing and judges,” he says.

For tenants who do show up to court, it’s not much better. “The court really operates like a giant black box. I have a friggin’ Ph.D. and I’m sitting there like, if this were me and I was actually there [for a case], I would have no idea what’s going on,” says Pasciuti. “There’s no direction, there’s nobody there to explain anything to you.” While some legal aid groups try to offer assistance, their availability is minimal, and most tenants go in without professional help. On days with full dockets, a case can easily receive less than 30 seconds of judicial review.

Rent court is one of the few courts in Maryland’s judiciary system for which no digitized records are available. Whereas all other court cases are filed online, no similar computer system has ever existed for these housing disputes; everything must be manually processed and gets filed away into a vault. Relatedly, no court records are available to determine things like the number of judgments ruled in the landlords’ favor, or how many times an individual tenant is brought to court annually. “I think those are critical numbers to know, and I’m all about watching statistics and watching trends,” says Scurti, who hopes the court will be included in a statewide electronic court filing initiative that is being rolled out over the next couple years. “Why we’ve never been electronic before, I don’t know,” he says. “I suspect it has to do with funding.”

Obtaining data on the number of evictions is similarly difficult. While the sheriff’s office tallies monthly eviction stats for rent court stakeholders to review, it does not make the data easily accessible to the public. It took several weeks for the city to agree to share with me that they had a total of 6,309 evictions in 2014. Housing advocates say the number has hovered around 7,000 evictions annually for the last 10 years. An Abell Foundation report published in 2003 found that the chances of eviction are greater if one rents in Baltimore than in comparable cities like Washington, D.C., Philadelphia and Cleveland.

Rent court is easily one of the state’s speediest judicial proceedings. Landlords can file for trial a mere one day after rent is late, no matter what the reason. In other states, like New York, landlords must serve tenants with a “rent demand” that gives them three or five days to pay overdue rent before an eviction case is started. New York tenants who do not receive these notices can raise that as a defense in court, says Jenny Laurie, executive director of Housing Court Answers. There is no similar pre-filing period required in Baltimore, leading to, what Shah describes as, “an enormous amount of unnecessary litigation.”

Such a rapid system also gives tenants little time to prepare their defenses, but from the landlord’s perspective, the process has to be quick. “On a large commercial scale [court speed] is not such an importance because they have an ability to withstand not getting rent, but when you’re not a commercial landlord and you have maybe just three, four units, or just one unit, plus a mortgage on the property, [not getting] your rent is a big deal,” says Dennis Hodge, a lawyer who has been representing landlords in the Baltimore area since the mid 1980s. “Most landlords do not want to do evictions, they prefer just to get their money,” he adds.

But when tenants are unable or unwilling to pass over that money, the courtroom’s speed comes into play again. With hundreds of cases to hear in a day, the judges have little time to hear the details of a tenant’s situation. And without professional legal assistance, tenants are generally unable to defend themselves against common chicanery like landlords tacking on additional charges veiled as rent.

Judges often ask tenants why they don’t just move if a rental is uninhabitable or too expensive. “People can’t afford to just pick up and move!” exclaims Detrese Dowridge, a 30-year-old single mother who has gone to rent court three time since May 2013. Dowridge’s Northwest Baltimore home had cracked walls and windows, scurrying mice and roaches, and a leaky ceiling. “And even if they can move,” she says, “then the person who comes in after them will still be stuck with the [same] landlord getting away with whatever.”

“There’s a lot of blaming and shaming the poor in the courtroom,” explains Shah. “I think the spirit with which the court operates is that you have to deserve your housing.”

Reforming Rent Court

Without a jury or many headline-making cases, civil courtroom proceedings have typically flown under the public’s radar. That is beginning to change. A Department of Justice report issued in the wake of police officer Darren Wilson’s deadly shooting of Michael Brown in Ferguson singled out the Missouri municipal court for “constitutionally deficient” procedures that “undermine the court’s role as a fair and impartial judicial body.”

Now attorneys at the Public Justice Center have teamed up with the Right to Housing Alliance (RTHA), a Baltimore-based human rights organization, and Jews United for Justice (JUFJ), a local activist group, to try and change the frustrating realities of rent court. With $280,000 in grant funding from the Abell Foundation, they hope to lead a court reform initiative and promote greater awareness about housing evictions around the city.

“The bare minimum allowable for any human dignity in the rental housing system is for this court to be fixed,” says Jessica Lewis, an organizer with RTHA.

“Our members that go through rent court are just defeated,” she adds. “They feel there is no dignity. It’s just really, really dehumanizing for them.”

Pasciuti, with a team of Johns Hopkins students, has been helping the three organizations conduct surveys and analyze their quantitative data. The goal is to collect meaningful information about what actually happens in rent court. “Our theory is if the public narrative about low-income renters was articulated, presented with numbers, substantiated in a really sound way, and we got it out to the right people, then we can get to a point where there is the political will, and even maybe the business interest to fix this system,” says Shah. The groups hope to go public with a completed dataset of over 300 tenant surveys, augmented by information from the court proceedings and regulatory agencies, later this fall.

In addition to bringing tenant voices into the public discussion, the Public Justice Center also aims to launch a legal strategy, in order to get sufficient clarity about what “rent” means in a residential lease context. Shah says they are considering either a class-action lawsuit or litigating through the appeals process to investigate tricky lease clauses that landlords often use to get more money or to evict tenants.

The activists’ timing might be just right. Scurti, the Baltimore judge frustrated by the lack of good data collection in his court, says he also wants to move toward a formal evaluation of docket patterns to see how the court can operate better. “I want to understand the process and to reevaluate it,” he says. He is particularly interested in figuring out how technology might help the court function more smoothly.

Ultimately, all sides agree that the court today is a flawed and inefficient operation. “You’re not going to encounter a judge, or a landlord, or an advocate for tenants who will tell you things are going well,” says Shah. The problem, however, is that improvement means different things for everyone involved. Despite the relative speed at which these cases move, Baltimore landlords, for instance, still feel the whole legal process should be adjudicated much more quickly and with less bureaucracy. Tenant advocates, on the other hand, want increased procedural accessibility and due process.

A promising place to look may be Massachusetts, which has one of the best housing court models in the country. First established in the 1970s, housing court officials in Massachusetts have prioritized creating a system that is accessible to both landlords and tenants.

In addition to a robust legal services community, Massachusetts employs court staff to serve as mediators between landlords and tenants and help them solve disputes without going directly before a judge. According to Paul J. Burke, deputy court administrator, the majority of rental disputes are settled this way. The typical length of a mediation session is around 30 minutes, which can provide a greater sense of dignity than Baltimore’s hasty proceedings. In some cases, mediations can even last for several hours.

Ultimately it comes down to fairness. “From day one back in the early ’70s, it was anticipated that many people would be self-represented, would perhaps be lower-income, and perhaps not have the highest level of educational training,” says Burke. “The policies, the processes and the forms in our courts have always been set up with that in mind.”