Sustained Outrage

Poverty and incarceration

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The U.S. Census Bureau released 2009 figures on income, poverty and health insurance coverage this week, and the numbers are pretty grim. Since 2008, the percentage of Americans living below the poverty line grew from 13.2 percent to 14.3 percent. There were 43.6 million Americans living in poverty in 2009.

And when the numbers are broken down, the results are pretty eye-popping: while the percentage of whites below the poverty line increased from 8.6 to 9.4, for blacks it went from 24.7 to 25.8, and for Hispanics it jumped from 23.2 to 25.3. Let’s think about that: one out of every four black and Hispanic Americans lives in poverty.

For children below the age of 18, the numbers jumped by almost 1.4 million in the last year, from just over 14 million in 2008 (or 19.0 percent) to 15.45 million in 2009 (or 20.7 percent). One in five American children lives in poverty.

The new numbers aren’t broken down by state, but last year, West Virginia didn’t fare very well overall (17.4 percent below the poverty line) or for children (23.9 percent).

And if these numbers weren’t upsetting enough on their own, the Justice Policy Institute just published this study that makes the connection between those facing economic hardship and those who end up incarcerated.

Poverty does not create crime, nor is limited wealth and income necessarily a predictor of involvement in the justice system; however, people with the fewest financial resources are more likely to end up in prison or jail. And the effects of an economic crisis like the one we are now experiencing are magnified for people with less income and wealth.

For this reason, the Justice Policy Institute chose to explore the connection between poverty and incarceration. Crime is down across the country, yet arrests and prison populations continue to increase, and disproportionately impact low-income communities and communities of color.

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On Wednesday, in remarks at the Congressional Hispanic Caucus Institute’s annual awards gala, President Obama brought up Albert Diaz, his last remaining nominee to the U.S. Court of Appeals for the 4th Circuit, citing the North Carolina judge as an example of how Republicans (specifically Senate Minority Leader Mitch McConnell, R-Ky.) have delayed confirmation votes for his nominees.

Here’s what the president said:

Right now, there are 21 judges who’ve been held up for months while their courts have sat empty.  Three of them are outstanding Latinos, like Judge Albert Diaz, who I nominated to the Fourth Circuit Court.  He’s been waiting for 10 months.  This is a widely respected state court judge, military judge, and Marine Corps attorney.  He was approved unanimously by the Judiciary Committee.  But just last month, the Senate Republican leader objected to a vote on his confirmation yet again.  And when he was asked why, he basically admitted it was simply partisan payback.  Partisan payback.

We can’t afford that kind of game-playing right now.  We need serious leaders for serious times.  That’s the kind of leadership this moment demands.  That is what we need right now.  Because when I get out of this town and I’m meeting with people, talking to folks, nobody is asking me, “Hey, Barack, which party is scoring more points?”  Nobody is saying, “Oh, don’t worry about us, I just want you to do what’s best for November.”

As I pointed out on Tuesday, some people are calling the current number of vacancies in the federal judiciary a crisis. Diaz, who was approved unanimously by the Senate Judiciary Committee on Jan. 28, has now been waiting longer than any other judicial nominee still pending.

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Today’s issue of the State Register lists just one meeting that violated the public notice requirements of West Virginia’s open meetings law.

The agency involved was the state Racing Commission.

As we’ve reminded folks before, the West Virginia Open Governmental Proceedings Act requires agencies to send meeting notices to the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Every week, we list the agencies that didn’t comply, thanks to the Secretary of State’s office, which kindly marks those agencies with an asterisk in the list of meetings published each Friday in the Register.

What we’re reading: U.S. Supreme Court edition

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Here’s a set of Supreme Court-related stories from this past week that we admired.

It’s rare that a current member of the U.S. Supreme Court gives an interview, so when Associate Justice Stephen Breyer sat down with Fresh Air host Terry Gross (admittedly to promote his new book, Making our Democracy Work: A Judge’s View), we read and listened to every word. The Clinton appointee described his vision of the Constitution as a living document, meant to adjust to changes in American values over time. “Words on paper, however, no matter how wise, are not sufficient to preserve a nation,” Breyer writes in his book. “Benjamin Franklin made this point when, in 1787, he told a Philadelphia questioner that the Constitutional Convention had created ‘a republic, Madam, if you can keep it.'”

The Court’s decision in Citizens United v. Federal Election Commission opened the door for corporate spending in elections, and during the current cycle, G.O.P. allies have been outspending their Democratic counterparts, the New York Times reported. But it is not necessarily coporations that are driving the spending, but interest groups that enable the donors to remain anonymous. “The situation raises the possibility that a relatively small cadre of deep-pocketed donors, unknown to the general public, is shaping the battle for Congress in the early going,” the article states.

The case of an Arizona eighth grader who was strip-searched by school officials looking for ibuprofen inspired Andrea Soros to donate $1 million to the American Civil Liberties Union, according to the Wall Street Journal. Soros, daughter of billionaire political activist George Soros, told the Journal that in this period of global and national change, “civil liberties are being called into question and are under threat.” Soros was in the Supreme Court chamber when ACLU lawyers argued the case, which resulted in the justices ruling by a margin of 8-1 that the search had violated student Savana Redding’s Fourth Amendment rights.

State Supreme Court to hear black lung ethics case

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Updated: You can read the story about Wednesday’s arguments from today’s Gazette here.

Oral arguments are scheduled at the state Supreme Court today in the legal ethics case against Douglas Smoot, a Jackson Kelly lawyer who defends coal companies against black lung claims from former miners.

In 2009, the state bar’s Office of Disciplinary Counsel filed a formal charge against Smoot, alleging that in 2001, he wrongly withheld evidence from a miner with an eighth-grade education who was representing himself at the time. (You can read the Statement of Charge here, and Smoot’s response here.)

During two days of testimony in June 2009, Smoot acknowledged that he had removed the “narrative summary” portion of a doctor’s report before turning it over to over to Elmer Daugherty, a retired miner who spent 42 years underground. Smoot said he decided not to disclose this portion of the doctor’s report (without telling Daugherty about the missing portion) because he found the doctor’s opinion — as opposed to more objective, factual tests and X-rays — to be “equivocal” and “contradictory from one page to the next.”

But lawyer Robert Cohen, who frequently represented miners seeking black lung benefits and was eventually hired by Daugherty (and who is now a commissioner with the Federal Mine Safety and Health Review Commission), testified that the portion of the doctor’s report withheld by Smoot was “highly probative,” and represented the kind of reasoned medical opinion that judges rely on when deciding black lung cases. It was a clear, unequivocal indication that Daugherty had black lung disease, Cohen said at the time, “and any suggestion otherwise is just wrong.”

The three-member panel overseeing the case recommended that the charges against be dismissed, which prompted the Office of Disciplinary Counsel to appeal the case to the state Supreme Court. You can read the ODC’s appeal here, Smoot’s response here, and the ODC’s reply to Smoot here.

Interestingly, three parties filed “friend of the court” briefs in the case, urging the justices to reject the panel’s recommendation and to find that Smoot committed an ethical violation.

Here are excerpts from the amicus briefs filed by the United Mine Workers of America:

To find, as the Panel does, that Attorney Smoot altered Dr. Zaldivar’s medical report because he was following a “common practice” or was somehow confused by the “complexity” of Black Lung practice is absurd, especially in light of the fact that Attorney Smoot submitted to the same [Administrative Law Judge]  in the same case the complete medical exam report of Dr. Robert Crisalli, which included the narrative portion favorable to Attorney Smoot’s client. Attorney Smoot is an experienced Black Lung practitioner who has made a name for himself and his firm defeating coal miners’ Black Lung claims. The Panel’s decision to give him “the benefit of the doubt on his intent” is not only inconsistent with the applicable legal standard, it ignores facts tending to show Smoot altered Dr. Zaldivar’s exam report to gain an unfair advantage over the pro se claimant.

And the National Black Lung Association and Appalachian Citizens’ Law Center, Inc.:

The hearing panel was appropriately “bothered” by the practice of turning over an adverse medical examination report without disclosing that it was disassembled and incomplete but felt “constrained by the evidence…including all [Smoot’s] witnesses who testified that the actions of [Smoot] were consistent with Black Lung practice.” However, there are two significant errors in the panel’s assessment of the record. First, the fact that others may engage in misleading conduct does not, in any case, excuse [Smoot] any more than the speeder who protests that he was not going any faster than others who were also speeding. No matter how many attorneys send out incomplete “exam reports,” particularly to pro se litigants, the conduct still involves misrepresentation.

Second, the finding is factually incorrect. When Mr. Smoot was asked if he could name a single other West Virginia attorney who engaged in this practice, the only person he could name was Bill Mattingly, another attorney in his firm.

And by West Virginia Attorney General Darrell McGraw:

[T]he Report of the Hearing Panel Subcommittee incorrectly concluded that because it is a practice within the Federal Black Lung Bar not to provide complete records, that “[t]his leaves the Panel in the position of judging the motive of [Smoot] when he disassembled and provided only part of the report,” and that the “Panel is giving the Respondent the benefit of the doubt on his intent based on all of the above.” While fraud and dishonesty might require intent or motive, misrepresentation does not.

You can read earlier coverage by Ken Ward on Sustained Outrage here and over at Coal Tattoo here. A live webcast of the oral arguments is available here.

Does America care about the judicial vacancy crisis?

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The Senate returned from its August recess yesterday, and spent part of the day discussing the nomination of Jane Branstetter Stranch, a Tennessee lawyer up for a seat on the Sixth Circuit Court of Appeals. When they took up a vote, Stranch was confirmed by a margin of 71-21. (West Virginia Sen. Carte Goodwin, who spoke on behalf of his late father in Charleston on Monday morning, hustled back to Washington in time to vote in favor of Stranch’s confirmation.)

Stranch passed out of the Judiciary Committee on Nov. 19, meaning that she had to wait almost 10 months before getting a vote. With her confirmation, the dubious distinction of the longest pending nomination passes to Albert Diaz, a North Carolina judge tapped for the 4th Circuit and approved by the Judiciary on Jan. 28. As I’ve noted before, Diaz went through the nomination and hearing process together with James A. Wynn Jr., another Tarheel nominated for the 4th Circuit. But in a somewhat inscrutable move, the Senate confirmed Wynn but not Diaz just before the August recess.

President Obama took office almost 20 months ago. In that time, 43 of his nominations to the federal bench (including two Associate Justices on the U.S. Supreme Court) have been confirmed by the senate. As this Judicial Selection Snapshot prepared by the Alliance for Justice points out, Obama’s two immediate predecessors met with considerably more success during their first 20 months in office. At the same point in their tenures, Bill Clinton and George W. Bush had nominated 123 and 122 judges respectively. At the end of August, Obama had secured 40 confirmations, compared with 83 by Clinton and 74 by Bush II.

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Secret meetings, Sept. 10, 2010

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It seems like it was a pretty good week for open government in West Virginia. Today’s edition of the State Register contains no meetings that violated the public notice requirements of West Virginia’s open meetings law.

As we’ve reminded folks before, the West Virginia Open Governmental Proceedings Act requires agencies to send meeting notices to the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Every week, we list the agencies that didn’t comply, thanks to the Secretary of State’s office, which kindly marks those agencies with an asterisk in the list of meetings published each Friday in the Register.

EPA seeks information on ‘fracking’ chemicals

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Well site during active drilling to the Marcelllus Shale formation in Upshur County, West Virginia, in 2008. Photo copyright West Virginia Surface Owners Rights Organization.

Here’s the latest from U.S. EPA about Marcellus shale drilling:

The U.S. Environmental Protection Agency (EPA) today announced that it has issued voluntary information requests to nine natural gas service companies regarding the process known as hydraulic fracturing. The data requested is integral to a broad scientific study now underway by EPA, which Congress in 2009 directed the agency to conduct to determine whether hydraulic fracturing has an impact on drinking water and the public health of Americans living in the vicinity of hydraulic fracturing wells.

In making the requests of the nine leading national and regional hydraulic fracturing service providers – BJ Services, Complete Production Services, Halliburton, Key Energy Services, Patterson-UTI, PRC, Inc., Schlumberger, Superior Well Services, and Weatherford – EPA is seeking information on the chemical composition of fluids used in the hydraulic fracturing process, data on the impacts of the chemicals on human health and the environment, standard operating procedures at their hydraulic fracturing sites and the locations of sites where fracturing has been conducted. This information will be used as the basis for gathering further detailed information on a representative selection of sites.

“This scientifically rigorous study will help us understand the potential impacts of hydraulic fracturing on drinking water – a concern that has been raised by Congress and the American people. By sharing information about the chemicals and methods they are using, these companies will help us make a thorough and efficient review of hydraulic fracturing and determine the best path forward,” said EPA Administrator Lisa P. Jackson. “Natural gas is an important part of our nation’s energy future, and it’s critical that the extraction of this valuable natural resource does not come at the expense of safe water and healthy communities. EPA will do everything in its power, as it is obligated to do, to protect the health of the American people and will respond to demonstrated threats while the study is underway.”

Hydraulic fracturing is a process in which large volumes of water, sand and chemicals are injected at high pressures to extract oil and natural gas from underground rock formations. The process creates fractures in formations such as shale rock, allowing natural gas or oil to escape into the well and be recovered. During the past few years, the use of hydraulic fracturing has expanded across much of the country.

EPA announced in March that it will study the potential adverse impact that hydraulic fracturing may have on drinking water. To solicit input on the scope of the study, EPA is holding a series of public meetings in major oil and gas production regions to hear from citizens, independent experts and industry. The initial results of the study will be announced in late 2012. EPA will identify additional information for industry to provide – including information on fluid disposal practices and geological features – that will help EPA carry out the study.

EPA has requested the information be provided on a voluntary basis within 30 days, and has asked the companies to respond within seven days to inform the agency whether they will provide all of the information sought. The data being sought by the agency is similar to information that has already been provided separately to Congress by the industry. Therefore, EPA expects the companies to cooperate with these voluntary requests. If not, EPA is prepared to use its authorities to require the information needed to carry out its study.

EPA is currently working with state and local governments who play an important role in overseeing and regulating fracturing operations and are at the forefront of protecting local air and water quality from adverse impacts.

This just in from the West Virginia Department of Environmental Protection:

The Department of Environmental Protection has expanded its Office of the Environmental Advocate with the addition of two staff members.

“I wanted to expand the office because the citizens of West Virginia have an increased interest and awareness of environmental issues and we want to be responsive to their need for information and involvement,” said DEP Cabinet Secretary Randy C. Huffman.

Dennis Stottlemyer and John King joined the staff September 1, and will assist Pam Nixon, who has been the sole environmental advocate since she joined the agency in November 1998. The Office of the Environmental Advocate has been in existence since the establishment of the DEP in 1992. This is the first time in the office’s 18 years of operation that is has been expanded.

Stottlemyer will be located in the Charleston office and King will work out of the Fairmont office. Huffman said their role will be to interact with individual citizens in the state, as well as work with community organizations and citizen’s groups

“Their main focus will be to close the gap between the agency and the citizens of the state,” Huffman said.

Stottlemyer is a 1995 graduate of West Virginia University, with a Bachelor of Science degree in Environmental Protection. Prior to being selected for this position, he was the Mitigation Coordinator for the Division of Mining and Reclamation. He also served as an Executive Assistant to the Cabinet Secretary for the DEP and was an environmental consultant prior to joining the agency. He is a member of the Davis Creek and Coal River watershed associations.

King earned a Bachelor’s Degree in Criminal Justice in 2002, and a Masters Degree in Physical Science in 2007 from Marshall University. His experience includes being an inspector with the Division of Water and Waste Management, and a regional coordinator for the Youth Environmental Program. He is also a member of the DEP’s dive team, and a founding member of the Morris Creek Watershed Association.

“This addition will allow DEP to reach more of its citizens,” Nixon said. “When it was just me, no matter how hard I tried, I was never able to address everyone’s concerns and issues. Now, DEP will be better able to meet with and communicate with more of West Virginia’s citizens.”

Major FOIA case at W.Va. Supreme Court today

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We’ve reported before on the important Freedom of Information Act case in which The Shepherdstown Observer is trying to get copies of the petitions filed to get a zoning matter on the ballot in Jefferson County.

Well, today’s the day that the state Supreme Court will take up the matter. Justices are set to hear oral arguments. The case is listed 5th on the court’s argument docket.

You can read the briefs here, and tune in later for the Webcast here.  The Court begins hearing cases at 10 a.m., so it’s not clear exactly when the FOIA case will come up … so stay tuned.

And check out our previous posts on this case here, here, here and here.