From Small Bug to Worldwide Pandemic

And how it is spreading from Berkeley to the rest of the world 

By Nery Castillo-McIntyre

Two years after finishing law school, I ran into Rebecca Sosa, a former UC Berkeley Law classmate on the streets of Alameda County. As we were catching up, we realized that we both caught a bug at Boalt Hall, albeit at different times. The symptoms had some variation, but the outcome was largely the same.

After talking with others about the issue, it became clear that Rebecca and I were far from alone. This bug is highly contagious, and many others have caught it. Thus far, the number of law school graduates and students who have caught the bug hovers around 1,300 and counting, but that might be just a modest estimate.

There is no fever, coughing or sneezing to speak of. There is hardly ever any need to call a doctor. In fact, victims of this disease appear to remember fondly the time when they caught the bug.

I am talking, of course, about the EBCLC bug. I caught it back in the summer of 2008: after being volunteered as an impromptu interpreter at a public interest event earlier that year, I stumbled into EBCLC quite by accident. Going into law school, my long term career plan was simple and straightforward: work at a law firm, make enough money to pay back my staggeringly high and debilitating student loan debt, and support my family—there were no illusions about enjoying my work, just the hope to pay the bills and maybe even do it in style.

But then there was this detour: an opportunity to work directly with clients at an organization that piqued my interest even as I nervously discharged my duties of accidental interpreter. The move would surely last just the summer of my 1L year, and then I would go back to my original plan.

It was not to be. Thus far in my professional life, I had been lucky to have wonderful supervisors to work for, but never a job I looked forward to and enjoyed. Up to that point, a job was simply a means to pay for the bills, but not much else. No surprise then at my lack of imagination when the time came to plot my legal career after graduation from law school.

All that changed not long into my summer internship at EBCLC. For the first time in my professional life, I was not filled with dread Sunday evenings, with a long work week looming ahead. Nor did I have the urge to engage in an endless countdown toward the weekend, starting as soon as the alarm clock woke me up Monday morning. I no longer lived for the weekend alone.

I enjoyed going to work that summer. Above all, I derived special satisfaction from telling low-income tenants all over Alameda County, “You have rights. These are your rights. This is how you exercise those rights. Now, go out there and exercise them.” My satisfaction increased exponentially once clients asked how much they owed EBCLC for its services and I could proudly answer, “Not a single dime.” The expression on their faces told me they could not believe anyone would care to advocate on their behalf without asking for something in return.

I must confess I also got a kick out of calling debt-collection agencies—especially the ones that went by names meant to look and sound like large, corporate law firms—and telling them that our low-income clients, often the hapless victims of identity theft, now had a team of attorneys and law students ready to advocate on their behalf (this in the early days before EBCLC’s Debt Collection Defense grew into the formidable practice it is today).

My one summer working at EBCLC’s Housing Law Practice and the Neighborhood Justice Clinic turned into the following semester doing the same; and then the spring semester interning in the Clean Slate Practice; the next fall with the Immigration Law Clinic; and, finally, doing some limited research for the Community Economic Justice & Development clinic. It is not a stretch to say that the only thing that stopped me from working at EBCLC any longer was graduation.

Except, of course, it did not. I am back at EBCLC, this time not as a law school intern but as a full-time employee. And I am not the exception, but almost the rule:

• One of my own law school peers from the summer 2008 is now an EBCLC staff attorney;
• another one of my law school classmates, Berkeley Law Class of 2010, is also a staff attorney who interned at EBCLC during law school;
• seven other staff attorneys are former EBCLC law student interns;
• three of those seven are now practice Directors;
• one staff attorney has been with EBCLC since its founding 25 years ago;
• one staff member worked at EBCLC in her late teens before going to college and, following graduation and a short stint at another non-profit, was actively recruited to come back to work full time 15 years ago;
• another staff member has worked for EBCLC for almost two decades;
• EBCLC’s Board of Directors boasts at least three former interns, and one EBCLC founder;
• EBCLC’s Advisory Board also has its share of former staff members and interns.

Rebecca interned in two different EBCLC practice areas over the course of two semesters and a summer. She recently won the Florida Bar young lawyers division pro bono service award. And she is not the only one.

EBCLC Alums live across the nation and the globe. They have gone on to become federal and state judges, politicians, law firm partners, and public interest lawyers—all of them have the experience of serving low-income clients.

Moreover, EBCLC’s model is being replicated not only in other parts of the state and the nation, but also in other parts of the globe, most notably Japan. A number of foreign jurists have visited EBCLC to learn about its model, from as diverse and far away places as China and Korea in East Asia; Armenia and Bulgaria in Eastern Europe; Morocco in North Africa; Bangladesh, India, Nepal, Pakistan, and Sri Lanka in South Asia; and France and Italy in Western Europe. More legal experts hailing from abroad are scheduled to pay a visit to EBCLC.

The small yet ambitious idea born in Berkeley 25 years ago has become a global movement. The bug so many interns caught has become a worldwide pandemic—a justice pandemic.

The EBCLC bug may cause anxiety, difficulty sleeping, nightmares and even night sweats. Red eyes are not uncommon. These symptoms arise from EBCLC attorneys and other staff members worrying about their clients.

But no doctors need be called, no quarantines necessary.

Nery Castillo-McIntyre is EBCLC’s Pro Bono & Communications Coordinator.

Evolution AND Revolution

By Jonathon Marley 

Photo Courtesy of NYC International Socialist Organization 

Tomorrow is May 1^st. May Day. The one day recognized around the world as a time to stop “business as usual” and really appreciate the massive contributions to our lives that working folks, laborers, and immigrants have made. The perfect time to contemplate where community-based legal services advocacy work – and fund raising for that work (my area of focus) – fits into the larger movements toward justice for workers and all people who struggle for a better, more just economic future. 

Growing up in Detroit, the son of a public school teacher (dad was a member of the local chapter of National Education Association) and a public library aide (mom belonged to American Federation of State, County & Municipal Employees), my four siblings and I were surrounded by the history of the labor movement, and the fine traditions of activism through boycott and strike. 

Though we were far from the fields of California, I learned from an early age not to buy table grapes when Cesar Chavez was focusing attention on the plight of farm workers, declaring “¡No Compren Uvas!” I understood why my family never bought gas at a Shell station, protesting with our dollars against Shell Oil Co.’s heinous treatment of workers and its militarized business practices in Africa and beyond. A bit closer to home, I supported the boycott of Coors Brewing Co. for their racist hiring practices. 

With the ramping up of attacks on labor in the 1980s – launched most notably by Ronald Reagan’s crushing of the air traffic controllers strike in 1981 – the union movement began a long slow decline across this nation.  Over the past couple decades, there has been a tendency to focus on less confrontational approaches to improving the lot of workers. Much of this has been very positive. I truly admire the new generation’s energy for and interest in alternative economic structures: advanced worker cooperatives, micro-enterprise creation, social venture capital, slow money, collaborative consumption, open-source economics, equity crowd funding, etc. Of course, some of these ideas have been around for more than 50 years, but the verve with which my younger colleagues focus on positive alternatives as a means to transform the extant economic model is inspiring. 

Which brings me to a phrase that is often bandied about the East Bay Community Law Center, as a means of portraying our social justice lawyering: “Evolution, not revolution.” I understand this to mean, “We aren’t in the business of rocking the boat too much. Rather, the way to achieve our goal of justice for low-income clients and communities is an incremental approach, within the confines of the legal and legislative systems as they exist.” Again, there are many merits to this “build-it-slowly-don’t-tear-it-down” strategy. It is a hipster philosophy toward social change. (And I use the word “hipster” lovingly, given that I have a 22 year-old son living and working in Brooklyn and a 20 year-old daughter attending NYU and working at Buffalo Exchange in the East Village. Can’t get much more hipster than that). 

However, at the risk of sounding like an old fogey, I will say it worries me that we – as social change activists – are increasingly pulling from only half of the toolbox at our disposal. If we are to successfully move from the current economic structure toward a “solidarity economy” that emphasizes the sharing of resources rather than the extreme market competition that has dominated the past few generations of life in this country, I believe we will need Evolution AND Revolution. We will need to say yes and no. We will have to support both crowd funding and crowd divestment (such as that which helped to transform the apartheid regime in South Africa during the latter half of the 20^th century). 

Thankfully, some recent examples of actions along these lines give me great hope. The boycott of Chevron in the wake of that company’s fire at its Richmond refinery that sent 15,000 residents to the hospital – not to mention Chevron’s responsibility for billions of gallons of toxic-laden wastewater dumped in the Amazon rainforest of Ecuador. The move by the California Public Employees Retirement System (CalPERS) to begin divesting from the weapons industry by selling more than $5 million of gun manufacturer stock and securities in the wake of the Newtown, CT massacre. The action by the City and County of San Francisco to ban all plastic bags at retail establishment checkout counters – amounting to a de facto sanction on the plastics industry in recognition of the health hazards related to plastic waste and contamination of the environment. 

While the staff attorneys and law students at EBCLC explore opportunities for utilizing legal services to help evolve our local economy toward positive alternatives – for example, our Green-Collar Communities Clinic (GC3) providing legal technical assistance to cooperatively-owned, environmentally sustainable businesses – there is a role for “old school” approaches within the organization as well. As the EBCLC Director of Development for the past 19 years, I am proud that we have sustained a policy that we will not seek nor accept grants from any entity under active community boycott. The idea is that, rather than taking money from anywhere, regardless of the source, we have aligned our fund raising philosophy with the social justice principles with which we carry out legal advocacy on behalf of our clients. 

Art courtesy of Occupy Oakland

Not particularly revolutionary, I suppose. And turning away from revenues in this challenging economic situation is not easy. Yet it is the right thing to do, and definitely takes EBCLC in the direction of recognizing and honoring the power of people to collectively stand against corporations and industries that act as “bad apples.” In this way, we use any means available to help make our communities more secure, productive, healthy, hopeful, and just. 

Happy May Day to all you workers – of every kind – out there! 

Jonathon Marley is Director of Development & Planning of the East Bay Community Law Center.

Debunking Common Myths about Juvenile Record Sealing in California

By Rachel Johnson-Farias 

The Starting Over Strong (SOS) project is working to eliminate barriers to reentry for Bay Area youth who want to leave the juvenile justice system behind for good and take a strong step towards beginning their adult lives with a clean slate. SOS works with people who have juvenile records and with communities impacted by the juvenile justice system by: 

1. providing information about record sealing and other remedies available to young adults with records;
2. representing Alameda County youth in juvenile record sealing proceedings; and
3. providing holistic legal reentry services that address the root causes of juvenile justice system contact. 

The first step in exiting the juvenile justice system is knowledge of the remedies available. During the first six months of the SOS project, we have learned that many potential clients do not know that sealing a record is an available remedy, and there is also misinformation about what happens to juvenile records post-disposition. This misinformation can negatively impact affected youth’s lives generally, but particularly their careers and civic opportunities. 

For instance, one client was denied admission to the military based on a record he believed to be sealed.  When a judge dismissed his juvenile probation, the client understood the probation dismissal to mean his entire juvenile record was expunged or sealed, only to find that his record appeared on a federal background check. The presence of an adjudication was enough to render the client inadmissible for military service despite the fact that the offense is sealable. This client’s story is typical. 

During initial intake, many SOS clients report that they were told or otherwise understood their juvenile record would not present barriers to future success when, in reality, juvenile adjudications can impact the lives of young people long after they leave the juvenile courts. In California, the collateral consequences of a juvenile record – just like an adult record – can include barriers to employment, licensing, housing, and civic engagement long after a young person exits the juvenile system. 

Record sealing can relieve some of the collateral consequences of a juvenile record. The sealing of a juvenile record means that when an agency is asked about a record, it must answer, “We have no record of that matter.” For most purposes, after obtaining the sealing remedy, previous adjudications are legally deemed never to have occurred (although the federal government, military, and some private companies doing business with the federal government can access even sealed records). Therefore, the record sealing remedy is a powerful one, but people are not likely to seek a remedy unless they know that it is available to them. 

The following addresses some of the most frequent misinformation: 

Juvenile Records Are Not Automatically Sealed 

‘They said that my record would be taken care of; that I wouldn’t have to worry about it’

Perhaps the most common myth surrounding juvenile records in California is that they are automatically sealed. The truth is that a person has to affirmatively petition the court for juvenile record sealing, and satisfy several statutory requirements prior to obtaining the remedy. In many counties, the record sealing process involves an adversarial hearing for which youth have no right to representation. In addition, counties may be reimbursed up to $150 for investigating a young person’s eligibility for record sealing; this charge may be applied regardless of whether the young person is actually eligible for the sealing remedy. 

A Juvenile Adjudication Is Not a Conviction           

‘When a job application asks if I’ve ever been convicted of a crime, I have to put yes, don’t I?’

Despite its quasi-criminal nature, juvenile court processes in California are still civil proceedings. This means that when a young person goes through the juvenile court system they are not convicted, but “adjudged” for crimes.  Therefore, if an employer asks a young person whether she or he has ever been convicted of a crime, and the young person only has juvenile adjudications, that person can legally answer “no.” 

You Can Vote with a Juvenile Record 

‘My PO told me I couldn’t vote in the 2012 election because of my juvenile record.’

The truth is that a juvenile record alone does not bar a young person from voting. In California, a United States citizen over the age of 18, not currently in prison or on parole is eligible to vote. In fact, even someone with a past felony conviction, or currently on probation for a non-realignment case or in jail serving a non-realignment or prison sentence can register or update her or his registration online. 

This is but a sampling of the misinformation that both pervades and exacerbates the collateral consequences of a juvenile adjudication. To learn more about some of the impacts of a juvenile record or to determine eligibility for juvenile record sealing in California, visit our website at: http://ebclc.org/starting_over_strong.php. Currently SOS is only able to represent people with juvenile records in Alameda County, but we welcome the opportunity to provide a confidential, free consultation regarding California juvenile records to residents of other counties. 

Rachel Johnson-Farias is an Equal Justice Works Fellow in EBCLC’s Starting Over Strong (SOS) Project. Her fellowship is sponsored by The Morrison & Foerster Foundation.

Holistic Advocacy in a Resource-Strapped World

By Leila Tabbaa 

As a student of EBCLC’s Youth Defender Clinic (YDC), I have sat in the Alameda County Juvenile Justice Center a number of times and watched as public defenders zoom in and out of courtrooms, calling back-to-back cases for hours. I watch as they greet clients and their families, sometimes for the first time. I watch as they huddle with moms, dads, and young people, answering questions, preparing, and debriefing, all within a few minutes. Having interned in multiple public defender offices, I know too well the difficult conditions in which these lawyers work—caseloads are huge, time is scarce, and tensions are high.

As I watch these strapped attorneys juggle and triage, I am usually sitting nearby with my client, explaining next steps, and listening to his mom as she worries out loud about the possibility of her child being placed in custody. As we wait in the hall for my client’s case to be called, he and his family are my sole focus. The contrast is so stark that I sometimes feel guilty about the attention that I can, and do, focus on this single young person.

Though YDC students lack the experience and expertise of seasoned public defenders, our low caseloads allow us to benefit tremendously from an abundance of the most precious resource: time. In YDC, our law student to client ratio is low: 1:2. In addition, supervising attorney Kate Weisburd contributes significantly to every case and closely supervises all our work. Our lower caseloads have afforded us the ability to make great strides towards implementing The Bronx Defenders’ pioneering “holistic defense” model. As “holistic defenders,” we seek to provide our young clients with wrap-around legal services that address not only their immediate courtroom needs, but also the collateral consequences and underlying causes of their system-involvement. Because YDC is situated within EBCLC, a thriving civil legal services organization, we are able to offer our clients a wide range of services—including immigration and education advocacy—that go beyond delinquency representation. We also have the time and capacity to think creatively about solutions for our clients, and do everything in our power to ensure that they are not set up to fail.

Last month, for example, a YDC student arranged for a team of social workers, education advocates, probation officers, and mental health professionals to meet inside the Alameda County Juvenile Hall to develop a transition plan for one client who they hoped would be released from custody soon. A meeting of this kind is unprecedented in Alameda County, but its effect on this young person’s life was profound: it enabled him to be released from custody early, and has put him on a tailor-made, and supported, path to success. This level of care and thoroughness is what defines and distinguishes YDC’s advocacy.

YDC’s holistic “whatever-it-takes” approach would be impossible for most public defender offices to employ given the current crisis in indigent defense in this country. The National Advisory Commission on Criminal Justice Standards recommends a caseload of 200 juvenile cases per year per public defender. Large caseloads mean less of everything for clients. Less time to understand clients’ specific needs, less time to meaningfully communicate with families, less time to learn clients’ individual stories. Without this information, defense attorneys are severely hampered in their ability to advocate effectively and knowledgeably for the programs and services that their clients need to return to their communities stronger, smarter, and safer. Developing this understanding takes time; rehabilitation is not a process that can be streamlined. The shortcomings of Alameda County’s approach to reentry are borne out in its shocking 78.5% juvenile recidivism rate in 2004. The status quo is not working for our young people.

As YDC grows and establishes itself, I am optimistic that our client-centered, holistic approach will begin to inform the culture of juvenile defense in Alameda County. The juvenile justice system is replete with problems that are beyond the scope of this blog. Even within this broken framework, however, defense attorneys could do more to stem the tide of recidivism if their caseloads were lower and they had the institutional support to engage in holistic defense. I believe that the forward-looking, individualized advocacy that YDC seeks to offer will help young people stay out of the system today and tomorrow. But this approach takes time. 

Leila Tabbaa is an intern in EBCLC’s Youth Defender Clinic and a third-year law student at UC Berkeley Law (Boalt Hall). Next year, she will be working as a Staff Attorney at the Office of the Appellate Defender.

Todos Somos Soñadores

Todos Somos “DREAMers”

Por Linda Tam 

Son las 06:00 una noche de martes, y un torrente continuo de gente pasa por las puertas del Centro Comunitario Legal del Este de la Bahía (“EBCLC,” por sus siglas en inglés) para el primer Taller de DACA del nuevo semestre. Todos son saludados por Ana, una clienta que quería devolver el favor brindando su tiempo como voluntaria, luego que EBCLC le asistió con su propia solicitud de DACA. 

“¿Hay más sillas?” pregunta otra voluntaria. La sala está repleta. Veinte personas se apuntaron, pero todos los solicitantes vienen acompañados de sus padres, hermanos, y amigos. Abrimos las puertas estilo francés y traemos sillas al corredor fuera de la sala. Todos adentro se corren para hacer más espacio para otros. Hay tímidos adolescentes desgarbados sentados con sus padres. Unos tienen la apariencia rendida que viene tras un día duro de trabajo. Otros charlan en perfecto inglés. 

Reduzco la intensidad de la luz para atraer la atención de todos y empezar a explicar lo que es DACA y cómo solicitar. 

DACA son las siglas en inglés de Acción Diferida para los Llegados en la Infancia (Deferred Action for Childhood Arrivals). El Presidente Obama empezó el programa en agosto de 2012 para proteger de la deportación a individuales indocumentados que vinieron a los Estados Unidos de niños, pero quienes están actualmente en la escuela o se han graduado de la preparatoria (“high school”). Una aprobación bajo DACA ofrece protección de la deportación por dos años y una licencia de trabajo. Una licencia de trabajo permite a un recipiente de DACA salir de las sombras y obtener un número de Seguro Social y una tarjeta de identificación o licencia de conducir del estado de California. 

Pero DACA presenta una tecnicidad legal extraña – no otorga ningún estado legal. Más temprano ese mismo día, algunos de los otros abogados y yo no tuvimos otra más que reírnos de la explicación confusa del Servicio de Ciudadanía e Inmigración (USCIS) en sus Preguntas Más Frecuentes en la internet que un recipiente de DACA se encuentra presente legalmente, pero no tiene estado legal en los Estados Unidos. 

¡¿Que qué?! Exactamente. Trata de entender eso, y luego explicarlo…¡en español! 

Al final de la presentación de introducción, los solicitantes y sus familias se entrevistan individualmente con un voluntario para discutir los aspectos específicos de su caso y para evaluar si son elegibles para un remedio legal de inmigración más permanente que DACA. Voces muy bajas murmuran en cada esquina de la oficina. 

Hemos sometido solicitudes de parte de estudiantes de diferentes colegios y universidades del Área de la Bahía, incluyendo UC Berkeley, Mills College, San Francisco State, y Laney College. Hemos sometido solicitudes de parte de graduandos de la preparatoria, personas que han vuelto a la escuela para obtener un Diploma de Educación General (“GED”), y actuales estudiantes de preparatoria de todo el Condado de Alameda. Son miembros del equipo de natación, del equipo de volleyball, y voluntarios en su comunidad. Son futuros doctores, abogados, paramédicos, propietarios de negocios, arquitectos, políticos, y activistas de justicia social. Son estudiantes con sueños tan grandes como los de cualquier otra persona; estudiantes que se han quemado las pestañas a pesar de un futuro incierto en los Estados Unidos. 

Dejo cada taller impresionada por los solicitantes y nuestra tropa de leales voluntarios. Una llamada a última hora a Erin y ya estaba en camino a comprar manzanas y sándwiches vietnamitas para sostenernos durante la larga velada frente a nosotros. Un correo electrónico a última hora a Ana y ya se encontraba ahí, saludando a la gente con una sonrisa, a pesar de que estaba enferma. Rosa estaba entrevistando a clientes con teléfono a su lado en caso que su mejor amiga entrara en parto. 

Voluntarias de DACA, desde arriba en dirección del reloj: Tania Valdez, Erin Jones-Le, Rosa Bay, Marisol León, Giani Interiano, Saba Ahmed, Linda Tam, y Emily Puhl 

Descubrimos el semestre pasado que organizar estos talleres es una tarea desalentadora. Tania Valdez, Rosa Bay, y yo empezamos estos talleres dos veces al mes en septiembre de 2012, luego del anuncio del programa DACA por parte de la Administración del Presidente Obama. En el primer taller del mes, utilizamos como personal a abogados voluntarios y a estudiantes de derecho para la presentación y las consultas individuales. Luego entrenamos a estudiantes en su primer año en la facultad de derecho y algunos miembros de la comunidad, como Ana, para asistir a solicitantes a llenar formularios y preparar sus paquetes de solicitud en el segundo taller del mes. 

Tras cinco talleres agotadores, muchos de los cuales han pasado de las 10 de la noche, y más de 60 solicitudes después, ¿vale la pena? 

La respuesta es un resonante ¡SÍ! 

Cada minuto ha valido la pena. 

Linda Tam es la Directora de la Clínica Legal de Inmigración de EBCLC. El original en inglés fue publicado el martes, 29 de enero de 2013. 

The English original was published Tuesday, January 29th, 2013.

Crowdfunding: an Unfinished Journey in the Democratization of Capital

By Caroline Lee 

There is a lot of excitement, intrigue and confusion swirling around the issue of crowdfunding, which uses the power of social media to raise capital. Some call it the democratization of capital, others see a messy and inefficient regulatory system that may well prevent its success. While some enthusiastically watch as websites like Kickstarter and Indiegogo raise thousands, and sometimes millions, of dollars through the crowd, others fear that easier access to capital via the Internet will encourage the posting of fraudulent projects that could trick unsophisticated investors, who may lack disposable income, out of their money. For better or worse, most agree with the claim that investing or donating through the Internet is fundamentally changing the landscape of start-up finance. What is apparent for the community economic justice movement, including EBCLC’s Green-Collar Communities Clinic (GC3), is that crowdfunding has the potential to create resilient, local economies by allowing small businesses and entrepreneurs to raise capital from neighbors who choose to invest in their communities. 

Crowdfunding websites such as Kickstarter and Indiegogo have already demonstrated the power of people to advertise their ideas online and garner significant support from the community to fund their endeavors. This new form of advertising has the potential to transform not only donation-based fundraising, but also local investing and small business financing. But a host of issues often go unrecognized or at least unaddressed by both attorneys and non-attorneys alike: 

• What is the legal framework underpinning these online portals?
• Why, currently, can they only offer donation-based opportunities where investors are not given a financial return?
• Why are average-income people not able to choose directly where to invest their money, thus left to placing it in retirement or pooled money market accounts that typically avoid investing in local businesses?
• And, why do small businesses face difficult barriers to traditional financing in the first place? 

Without providing an exhaustive history of securities law the answers to these issues find their roots in the U.S. Securities and Exchange Commission (SEC)’s mission to “protect investors, maintain fair, orderly, and efficient markets, and facilitate capital formation.” The SEC is charged with both protecting investors and the market, while also creating avenues for raising capital and managing financial markets. On balance, the agency has interpreted its mission in favor of big businesses over small, excluding (or at minimum strongly discouraging) low-income investors in the name of investor protection. 

For example, if you wanted to open a small grocery store in a low-income neighborhood to provide a healthier alternative (or in some cases the only alternative) to fast food franchises and corner stores, and you needed more financing, the current regulatory system would likely prevent you from approaching your neighbor to invest if she is not already an accredited investor. An accredited investor must have annual income in excess of $250,000 or $1 million net worth (excluding her home). Translated, these requirements mean that only 3% of the population is qualified to invest directly in their local store! Convincing a bank to provide a loan would also be very difficult, as banks do not often lend to merely a good idea, with no history of success, let alone if the store is to be located in a low-income neighborhood. Your two remaining options would be to either convince a wealthy investor to help finance the business or raise donations on a website like Indiegogo, both of which take a lot of luck. 

In the Jumpstart Our Business Startups (JOBS) Act, Congress tried to remedy these constraints imposed by the regulatory system by directing the SEC to draft a crowdfunding exemption to allow funding portals, including Internet websites, to offer investments to the public. In an ideal setting, an exemption from securities law would allow lower- and middle-income individuals to pool their capital through equity, debt, or other financing mechanisms and fund start-up businesses that will positively impact their communities. By utilizing an online funding portal such as Kickstarter, rather than merely providing philanthropy, these community members could receive a return on their investment, have control over where their money flows and generate capital in their community. In short, if your neighbors wanted to invest in your grocery store, they could. 

Through this lens, crowdfunding does offer the potential to democratize capital and open small investment opportunities. However, many academics and scholars agree that the exemption is so focused on investor and market protection that it will not be able to achieve this goal. The JOBS Act was micro-legislated, meaning that Congress included specific provisions that the SEC must implement, such as: 

• individuals with an annual income or net worth less than $100,000 can only invest up to $2000 or 5% of their annual income or net worth;
• those with annual income or net worth over $100,000 may not invest in excess of 10% of their annual income or net worth, not to exceed a maximum aggregate investment of $100,000;
• businesses targeting offerings of more than $500,000 require audited financial statements;
• and, the funding portals must be highly regulated and approved by the SEC. 

Many agree that this level of investor protection would make it cost prohibitive for small businesses and the portals to comply. However, until the regulations are announced, we cannot gauge their actual effect. 

In the meantime there is an already-existing, perhaps even more effective, method to raise small capital investments for your grocery store idea. A direct public offering (DPO) is a state-based offering exempt from compliance with federal securities law because it takes place solely within one single state. A DPO allows start-ups to sell securities directly to the public without the use of an intermediary, which would otherwise help deter fraud and protect investors. California calls a DPO “qualification by permit” and, once approved, the startup can publicly advertise the investment opportunity through a variety of channels including the Internet and newspapers. While the offering is limited to in-state investors, some argue that the DPO has fewer restrictions overall and may be a more effective capital-raising mechanism than the anticipated crowdfunding exemption. 

With a DPO, you could realize your grocery store dream through raising small investments from the community and leveraging the buying power of the residents in your state. In fact, People’s Community Market (PCM) is doing just that, raising over $325,000 to date. PCM seeks to open West Oakland’s first full service grocery store in over a decade. West Oakland is a predominantly African American and Latino community with an overabundance of liquor stores and mini-marts, but no comprehensive fresh food market. The neighborhood’s 25,0000 residents must travel over a mile to reach the nearest Pak n’ Save or Safeway discount market. PCM’s mission is to bring fresh foods and groceries as well as a “health resource center and community hub … that supports local families to attain healthier and more socially connected lives.” By offering investments through a DPO, PCM is allowing the neighborhood to choose where their money goes, help build a much-needed grocery market in the community, and become founding investors in the store. 

Some people may question whether a public interest law practice such as GC3 should include providing assistance to businesses that seek to raise start-up capital from their community. This sentiment seems rooted in the fact that much of the legal profession’s pro bono services focus on litigation, where the need for assistance is often more obvious and direct, and the results are more easily observed. Certainly some may legitimately question whether raising $300,000 or even $1 million is genuinely a public interest activity. Yet, the power of local business development to allow one’s capital to remain in the community, where community-based entrepreneurs have the power to launch a business, create stable employment and even provide ownership opportunities, is vital for the creation of thriving, productive, and healthy communities. Thus, the power and promise of crowdfunding can be harnessed and directed to serve the mission of community-based economic justice practices such as GC3. 

Caroline Lee is a third-year law student at UC Berkeley School of Law (Boalt Hall) and a law intern in EBCLC’s Green-Collar Communities Clinic (GC3). She is interested in environmental law and justice, and more recently, its intersection with securities law. 

This article was originally published in GC3’s blog.

Persistence

By Luan Huynh

California’s Maximum Family Grant (MFG) rule punishes welfare families by denying aid to children who are born into welfare. Generally, welfare grants increase by less than $200 a month for each child in the household to cover basic necessities. Under the MFG rule, the grant is not increased with the birth of a new child if the family is already on aid. In effect, the child is excluded from assistance due to the circumstances of its birth.

EBCLC has been trying to repeal the MFG Rule since I started working in the welfare practice in 2005. It has been an uphill battle for Ed and me. In this struggle, I have frequently felt like Sisyphus pushing a boulder up the mountain, only to see it roll back down. Defeat, futility, exhaustion are   terms that come to mind—none of them good.  Sometimes I have them, but still, I persist.  It could be that I am blinded by my outrage about what the MFG rule says and does to women and children; it could be that a $250 training on lobbying has actually made the difference on my long term outlook about policy work; or it could be that I have really good role models to turn to when I need inspiration.

Exemptions to the rule exist for women who are victims of rape and incest, so long as they reveal this information to a social services type agency within 3 months before the birth of the child. Exemptions also exist if poor women act “responsibly” and sterilize themselves, insert Norplant or an intrauterine device (“IUD”) in their bodies, or take Depo-Provera injections. However, if “responsible” men and women use birth control pills and condoms, the two most widely used, less invasive forms of birth control, then the MFG rule will still apply should a woman accidentally get pregnant.

Part of my outrage comes from the sense that the State does not trust poor people to act responsibly or tell the truth, so it uses the MFG policy to coerce women into using more invasive forms of birth control. As a woman who was raised on welfare, I find the policy insulting. The MFG policy does not consider people’s medical needs, the venereal diseases that are spread as a result of discouraging protections such as condoms, and ultimately, it does not consider the well-being of children in the CalWORKs/TANF program.

The MFG rule was voted on through the budget trailer bill process in 1994. Women and children are paying the price in the form of homelessness, utility shut-offs, lack of transportation, greater stress, and less capacity for development. All of these deprivations hinder stability. Because of this rule, we have started seeing families without any cash aid at all. In one instance, a mom, a son, and a daughter have been living without any cash aid because mom is timed out and the two remaining children are subject to the MFG rule. Imagine what life is like for this family. When I meet this mother and her children, I am reminded that this policy has no right to punish this woman for being a mom and her children for being born.

What propels the MFG policy is the fear of poor people of color. A favorite stereotype of Ronald Reagan was a “black welfare queen” driving around in her Cadillac collecting welfare checks at the expense of taxpayers. That false and racist notion pervaded the media in 1994, when the general public would hear repeatedly that women, particularly black women, were having babies to increase their CalWORKs grant and that welfare families were much larger than non-welfare families. Never mind that on average, women on welfare only have about 2.6 children, similar to that of the general population. Never mind that the typical family on welfare in California is Hispanic (55%); whites (22%), blacks (17%) and Asians (6%) make up the remainder of the caseload. Never mind that studies disprove the myth of welfare as a financial incentive to have more children. Yes, the data is there to correct the stereotypes that have pervaded the discourse in welfare for decades, but there are not enough people talking about this data, and even fewer who would listen to it. Information moves people only so much when it contradicts their images of welfare recipients. We do not have critical mass just yet to eliminate the MFG rule, but with enough legislative visits, we might. Sometimes it helps to say things again and again.

In 2006, EBCLC and the Women of Color Resource Center co-sponsored AB 22, a bill that would have repealed the MFG rule, authored by Assemblywoman Sally Lieber. Working together, we drafted the text of the bill, researched the number of MFG children in the state of California, read every study conducted on such “family caps,” interviewed clients and their children and created profiles that would give legislators a sense of how caps impacted individual families. We created sample letters, fact sheets, a website, and developed a media strategy in an effort to repeal the MFG rule. It was a lot of work. The more we worked on AB 22, the more our hopes rose.

Then, the recession hit. The State had a budget deficit in the billions that kept on growing. Everything costing $500,000 or more was put in the suspense file once it went to the Assembly Appropriations Committee. Money would not be given to CalWORKs, but rather taken from it to fund other state programs. It was depressing.

There are very few legislators who know the CalWORKs program well: due to term limits, the institutional memory of when and how the rule was passed was virtually non-existent. When we visited Democratic members and their staffers with our legislative packages, it was the first time many had heard of the MFG rule. At the time, they supported repealing the rule in theory, but the excuse for not doing away with it came down to money. It felt like we were pushing the boulder up the mountain, only to have it come crashing down because of the state budget.

In 2010, we were able to get Assemblywoman Mariko Yamada to introduce a more limited MFG repeal. The bill would have lifted the rule for children who, due to autism or other developmental delays and disabilities, qualified for individualized education plans under the Individual with Disabilities Education Act (IDEA). The state budget was still terrible at the time, and the Assemblywoman had little faith that the bill would get passed. The bill faltered. Again, the boulder rolled back down the hill.

We could have given up there. But, if the budget was the primary obstacle to getting California to eliminate the rule, perhaps we could get the federal government to provide California fiscal incentives to do so. We started attacking MFG on a federal level. Congressman Pete Stark agreed to author a congressional bill to apply financial penalties to states that chose to enforce “family caps” (the generic term for rules like MFG). We had our bill text ready. Pete Stark’s chief of staff was previously a legal aid attorney for welfare recipients. We found a great D.C. organization to partner with. We started writing to the Obama Administration to plant the seeds in preparation for TANF Re-Authorization. We were just waiting for President Obama to get re-elected and to brave the challenge of reauthorizing TANF to achieve a positive outcome for poor people despite a Republican-controlled House. Then, the boulder came rolling down the mountain again. Congressman Stark, who had been in the House for 40 years, lost his re-election this last November. We lost our congressional author.

I was tired of fighting, but I knew better. Years ago, EBCLC sent me to a lobbying training taught by Ray Lebov, a Capitol insider who has become a lobbyist-educator. He taught many good things, but I can only remember one: PERSISTENCE. Policy work does not succeed in one year, or even two. Many policy objectives require a five to fifteen year sustained effort, and many take longer than that. Going into this in 2006, Ed and I both estimated that eliminating the MFG rule would take about 10 years. We are still under that ceiling. Having a somewhat realistic sense of the long term trajectory needed to repeal the MFG rule has allowed me to keep on fighting because each defeat can then be seen as just a battle within a greater campaign. Policy work is like prizefighting: having the stamina to get up and continue to fight each round is key to winning.

Last winter, I was surprised by a call from a reporter for the Philadelphia Tribune, who told me that a Republican in Pennsylvania wanted to introduce a family cap for that state. In the meantime, for the first time in seven years, the California State Budget was no longer in a deficit. Then, Jessica Bartholow at the Western Center on Law & Poverty (WCLP) told me that the Center wanted to co-sponsor MFG repeal with us. Hooray! The reproductive justice team at Women’s Policy Institute, a project of the Women’s Foundation, agreed to work on the bill as part of their legislative learning experience. Assemblywoman Holly Mitchell, a black mother and an ex-legal aid attorney dedicated to making the CalWORKs program work better for everyone, agreed to author the new bill, AB 271. Assemblyman Tom Ammiano agreed to co-author the bill. His District Director, Kimberly Alvarenga, worked with us on AB 22 in 2006 and 2007. We are doing legislative visits now to obtain additional co-authors and to get the bill out of the Assembly Human Services Committee. We are visiting the legislators of the Women’s Caucus to obtain their support to give the bill the best chance of getting out of the Assembly Appropriations Committee, as money continues to be the biggest obstacle for passage of this bill. On our visits, we discovered that legislative staffers remember us from 2006. The website that we developed in 2006 is still being used for research purposes. The material that we prepared in 2006, the framing, the media strategies, the meeting notes, the questions opponents might ask are all still with us and have helped us this time around.

Each time the boulder stops rolling down, it lands at a higher point up the mountain.

To do policy work, you have to be a glutton for punishment. You have to be prepared for rejection. In the last six years, I cannot point to any victory on this policy matter. Thank goodness I have the direct services work to help drive me. Our clients give me fortitude to handle the rejection. If these single moms are asked to persist and fight with everything they have in the face of poverty, overburdened education systems, hostile welfare office that degrade their humanity, ghettos that make them worried that their children will be “collateral damage” to some shooting, and a system that does not value their existence and input, then I can fight this battle – even if it ends up being a losing one. The challenge of repealing the MFG rule, though steep, is simply nowhere near what our clients face.

I believe we will win this battle by 2016, if not sooner. If you would like to help, send us a letter of support for AB 271. Words of encouragement and moral support are also dearly appreciated.

Luan Huynh is Staff Attorney in EBCLC’s Welfare Law & Policy Clinic.

A Long Way Come, and a Longer Way to Go

When it comes to HIV stigma, our work is cut out for us 

By Sheila Hall 

A few weeks ago, one of my clients called me in tears. When she was out sick from her job as a clerk in an Oakland clothing store, a “friend” of hers called and told her manager that she was HIV-positive. Upon returning to work, my client was called into the manager’s office and told that she may not return to the job until she provided medical proof that she was not HIV-positive. As soon as I heard this, I went into full advocacy mode, telling her this was an illegal violation of her rights and offering to intervene on her behalf. But for her, the whole experience was so painful and traumatic that she just wanted to walk away from the job. She felt overwhelmed and ashamed, and mad at herself for having told her friend she had tested positive. The last time we spoke, she told me she had learned her lesson and would never reveal her HIV status to anyone again.

Living in the Bay Area, it is easy for many of us to think that discrimination against people living with HIV is a thing of the past – that HIV is now no different than any other chronic illness that can be controlled with medication. But a call like this serves as a reminder that we are not there yet – and in fact we have a long way to go. Despite remarkable medical advances that have improved quality of life for most HIV-positive Americans, ignorance and fear about HIV continues to fuel stigma, subjecting positive individuals to discrimination in all walks of life, including employment, housing, and access to medical care and insurance coverage. As noted in the US National HIV/AIDS Strategy issued by the White House in July, 2010, “the stigma associated with HIV remains extremely high, and fear of discrimination causes some Americans to avoid learning their HIV status, disclosing their status, or accessing medical care.”

A 2009 national survey conducted by the Kaiser Family Foundation shows that a surprisingly high percentage of Americans are still very misinformed about how HIV is transmitted. 27% of respondents believed that HIV could be transmitted by sharing a drinking glass; 17% believed that HIV could be transmitted by touching a toilet seat, and 14% believed one could be infected by swimming in the same pool with someone who is HIV positive. In addition: 

• 51% reported that they would be very uncomfortable having their food prepared by someone who is HIV-positive
• 42% would be very uncomfortable having an HIV-positive roommate
• 35% would be very uncomfortable with their child having an HIV-positive teacher
• 23% would be very uncomfortable working with someone who is HIV-positive 

Reading these numbers had me double checking that this survey was conducted in 2009, not back in 1989. Yet, surprising as these results may be, they are not out of line with some of the heartbreaking stories I still hear from clients and fellow HIV/AIDS advocates.  While many individuals share their HIV status with others and are met with acceptance, a significant number are still fired from jobs, barred from sharing bathrooms or kitchens, denied housing, medical and dental care, and admission to nursing homes.

Further evidence that HIV discrimination is still occurring all too frequently can be found in the summary of recent compliance actions handled by the US Office of Civil Rights. In one case, an HIV-positive patient filed a complaint against a Kaiser doctor in South Sacramento who refused to insert an ear tube to treat an ear infection, out of fear that fluid leaking from the tube could transmit HIV. The hospital apologized to the patient and agreed to increase HIV training for staff. In another case, a veteran recovering from hip surgery was denied admission to a skilled nursing facility in Northern California because of his positive HIV status. After OCR investigated, the facility agreed to make more nursing beds available for people living with HIV.

Given the very real risk of discrimination people living with HIV face, it comes as no surprise that many individuals keep their HIV status a secret, even from close family, relatives and friends, or refuse to get tested in the first place. Because of this, many individuals living with HIV struggle with depression and substance use. It is extremely challenging to live with a chronic, possibly life-threatening illness, especially when telling anyone about it may result in rejection, discrimination and social isolation.

Recently, a boarding school for disadvantaged youth in Pennsylvania rejected an HIV-positive 13 year-old for admission, calling his HIV status a “direct threat to the health and safety of others.” Reading about this, I could not help but think back to Ryan White, the American teenager who was not allowed to return to school after he tested positive for HIV in 1984.  Who would have thought that a child in 2012 would face the same discrimination Ryan White fought against more than a quarter century ago?

Fortunately, the response to the school’s discriminatory decision was swift and effective – the AIDS Law Project of Pennsylvania sued in federal court and the school settled quickly, agreeing to pay damages to the boy’s family, change its admissions policies and increase its HIV education and training for staff and students.  AIDS Law Project of Pennsylvania executive director Ronda Goldfein stated that the settlement “sends a clear message that we can stop asking the question of whether people with HIV are a risk in these casual settings. That science has been clear and remains clear they present no risk. We don’t need to have this conversation anymore.”

She’s right. We shouldn’t have to have this conversation anymore.  But we still are, and it looks like we will continue to do so, over and over, until people are no more concerned about having an HIV-positive roommate, co-worker, or teacher for their children than they would about a person living with diabetes or any other chronic illness.  But this is not going to happen unless we continue to push for increased public education about HIV, and for strict enforcement of anti-discrimination laws that protect the civil rights of people living with the virus.

The need to continue these efforts is as important as it ever was. HIV is still spreading at a steady rate, especially among young people of color. Recent CDC statistics show that people between ages 13 to 24 make up the largest age group of newly diagnosed individuals, comprising 39% of all new infections, with 65% of them being African American. These teens and young adults, like all HIV-positive individuals, are entitled to live their lives free of the stigma and discrimination that so many have faced for the past 30 years.

Maybe someday we will no longer need to have governmental agencies, legal services and advocacy organizations devoted to protecting the rights of people living with HIV. But we are not there yet.  For now, we’ve got our work cut out for us.

Sheila Hall is Director of EBCLC’s Health Law Clinic.

Stop Shortchanging Our Humanity

We Need a Homeless Bill of Rights

By Elisa Della-Piana 

“Of all the preposterous assumptions of humanity over humanity, nothing exceeds most of the criticisms made on the habits of the poor by the well-housed, well-warmed, and well-fed.” –Herman Melville 

One of my homeless clients called recently to say that all his belongings had been taken again. He had no blankets or extra clothes on one of the coldest nights this winter.  The first line of his voicemail is: “Being homeless sucks.”

It’s not just him. Most of us can’t imagine what it would be like to be without shelter or food.  I feel hungry when it has been an hour since I had a snack, and I complain about lack of sleep when my three-year-old sneaks into my warm, king-sized bed at 3 in the morning. I can’t pretend to understand malnutrition and sleeping on cold cardboard and cement.  Similarly, most of us do not know what it feels like to be publicly reviled.

I have seen someone spit on a homeless person. They are victims of violent hate crimes. Every day, we ignore homeless people or treat them as invisible.  Then, the police harass, cite, and arrest them for sitting or sleeping, even when they don’t have anywhere else to go.  It is worst for people who are homeless and of color, or disabled, or queer, or all of the above. The level of public vitriol is apparent in the comments section of any article on homeless people in public spaces: “[Homeless people] are angry derelicts who need to GROW UP, CLEAN UP, and GET A JOB.”  “[T]hese disgusting bums. I’m sick of seeing these pigs sleeping in doorways and sidewalks.”[1]

Our communities regularly make a big mistake when discussing homeless policy.  We define the problem as: homeless people are inconvenient, rather than: homeless people are dying on the streets, our elders are disabled and houseless, our veterans serve our country and end up forgotten.  There are over 10,000 people on Alameda County’s full public housing waiting lists. We could be – and should be — organizing to get the federal government to restore affordable housing funding to its levels in the 1970s, when homelessness was practically non-existent.

Instead, cities across California are passing more and more laws that make it illegal for people to sit, sleep, eat, or be in public spaces, and the police attempt to move people out of sight. When we say things have to change because of our discomfort, because it is unpleasant to see homeless people or smell them or hear them ask for change – we are shortchanging our own humanity.  And theirs. We’re also missing the real solutions.

This is not to say that there isn’t inconvenience or unpleasantness involved in encountering poverty in public. I feel guilty when I don’t give money to a person panhandling, and am sometimes annoyed about feeling guilty. I have walked through downtown Berkeley feeling carefree, only to be brought back to reality by the swollen ankles of a houseless person who looks really sick.

I also have lots of positive experiences with homeless people: a man who gave me directions to a downtown restaurant walked by a few minutes later and waved through the front window – he was making sure my family made it there okay. A homeless woman helped convince me to move back to the Bay Area – we met on the BART train late one night and both ended up crying as we shared stories about life not going how we expected.

The solution is not to move homeless people to some undetermined location where we do not have to see them.  It is not to increase criminal penalties and enforcement for sleeping or sitting.  We know after 30 years of increasing the criminalization of homelessness across the country that criminalization does not work.

We know the primary solution to homelessness: enough affordable housing.  In the meantime, the least we can do is recognize that homeless people should have the same rights as everyone else: The right to move freely in public spaces without harassment.  The right to patronize businesses free of discrimination based on housing status.  The right to equal application of our laws – not selective enforcement.  The right to eat – no laws making it a crime to share food with homeless people.

These rights – and a few more – are part of the Homeless Bill of Rights, or AB5, currently being considered in the California legislature. EBCLC is sponsoring the bill, along with the Western Regional Advocacy Project, the Western Center on Law and Poverty, and Jericho.  The bill’s author is Assemblymember Tom Ammiano, who refuses to look the other way when he sees marginalized people. The bill was written with feedback from over a thousand homeless people and input from individuals and organizations across California who work directly with homeless people every day.  It reflects what it is like to live on the street. It provides much needed protections.  It is a simple statement that homeless people have equal rights. It’s about time that we recognized them. 

Elisa Della-Piana is Director of EBCLC’s Neighborhood Justice Clinic.

Clean Slate Services for our Reentry Vocabulary

By Eliza Hersh 

The lexicon of reentry needs a major overhaul, or the “clean slate” treatment. The terms we use to tell the stories of people who have had contact with the criminal justice system are imprecise, misleading, and contribute to bad reentry policy. 

Here, in no particular order, are the worst…  ahem … offenders: 

“Clean Slate” 

Every time we meet a new client or give a presentation about the work we do, we have to make “The Big Disclaimer”: Yes, our practice is called Clean Slate, but no, there is no such thing as a “clean slate” when it comes to criminal convictions in California. 

Instead, the primary tool we have to help our clients is the extremely limited Penal Code section 1203.4 dismissal, AKA the “expungement” remedy. 

Calling this relief “expungement” is terribly misleading, if expungement conveys any sense of erasing, deleting, or removing. Even when a judge grants our clients’ dismissal petitions upon a showing of rehabilitation, the public record of that dismissed conviction remains exactly that – public. People who receive this relief are still required to disclose dismissed convictions on certain applications for jobs, housing, and professional licenses, even though research and experience has shown that this requirement does not promote public safety. 

Nonetheless, lawyers, judges, the media, and our clients continue to mistakenly believe that there is a true expungement remedy in our state. The disconnect between what most people think California’s laws are—or should be—and reality is partially the result of lawmakers’ ambivalent approach to reentry policy. Even lawmakers committed to crafting sound and effective policies cannot seem to decide whether to take a “forgive” or a “forget” approach to reentry. It is almost universally accepted that successful reentry requires meaningful employment opportunities for people coming out of the criminal justice system. Do we allow someone to hide (or expunge, if you will) a criminal record from prospective employers? Or do we create a path to official forgiveness and establish and enforce limits on the permissible discrimination allowed on the basis of conviction history? 

Today in California we do a little of both, and thus we do neither well. The result is a tangled, anachronistic mess of reentry laws and regulations that are incoherent and inconsistent both in theory and in practice. Consequently, we miss opportunities to foster successful reentry. The result? Destabilized communities, increased poverty, and decreased public safety. 

There is an exception that proves the “no clean slate” rule, and it is instructive. California has one true expungement remedy for some low-level marijuana possession offenses. These convictions automatically and completely disappear from Record of Arrests and Prosecution (“RAP”) sheets after two years, a provision we call the “California Lawmakers Have Children Who Get Marijuana Convictions, too” Law. 

This automatic, mandatory remedy is actually based on sound policy reasons supported by research, and therefore should apply equally to other low-level offenses. The day that bill gets signed into law, we will call it the “Stronger, Safer Communities For All” provision. And we will finally be able to say our Clean Slate name, disclaimer free. 

“Paying A Debt To Society” 

Some of the collateral consequences that follow contact with the criminal justice system are sound policies. We can all agree that people currently using drugs or at high-risk for relapse should not be driving school buses. And beyond just public safety, we accept that “punishment” plays a righteous role in our criminal justice system. People who break the law, our society believes, owe a debt to society. 

Overwhelmingly, our clients have deep remorse and regret about their offenses. They take responsibility for the poor choices they have made and are grateful for the opportunity to make amends when they have harmed victims, their own families, and their communities. But their life experiences, especially those caught up in our country’s decades-long “War on (People on) Drugs,” lead us to wonder about debt they should owe, and how our society will measure repayment. 

Many of the collateral consequences of arrest and/or conviction are lifelong, unintended, and unforeseen by clients, judges, and policymakers alike. A 65-year-old client who sustained a petty theft conviction when she was nineteen years old never imagined that, decades later, it would be a barrier to her gaining custody of her young niece and nephew who have incarcerated parents.

Another client told us:

While I was growing up, my mom was on drugs and too out of her mind to take care of our family.  When I was seventeen, I started having to pay her rent and buy food for her, my younger sisters, and myself. I was also paying the PG&E bills and buying my sisters’ school uniforms.  All these bills required money and turning tricks was the only way I knew to survive. I did not graduate from high school and believed that I could not get a real job without a diploma. As it turned out, I got stuck in that life. Being on the streets was very hard. I ended up getting arrested and going to jail. Even worse was the way I was treated as a prostitute. The worst things that could have happened to me did happen. 

After getting released from jail, this client got herself back into school and got a GED and a professional degree, thanks to her herculean strength of will. But because of her record, she still faces ongoing barriers to employment, and consequently, economic security for her family. EBCLC can help her overcome some of these barriers but some will remain in place for the rest of her life. 

Her story tells us that it’s time to rethink the expectation embedded in many of our reentry policies that everyone with a criminal conviction owes a boundless, life-long debt to society. If California continues to hold fast to the principle that indebtedness follows conviction, then we must begin to create opportunities for repayment of that debt that enrich, not further impoverish, our communities. 

“Felons, convicts, and offenders” 

“Felon” has fewer syllables than “person with a felony conviction,” and certainly takes up less space in a newspaper headline. But the terms “felon,” “convict,” and “offender” deceive us. They allow us to reduce people to, and in the process define them by, only the very worst thing they have ever done. They are euphemisms that speak to acts, not people. Those terms fail to convey our clients’ capacity for change and growth over time, and conceal the incredibly hard work they have done to change their lives. If you have ever loved or respected someone—or have been someone—who has made a grave misstep, you know that people are not the sum total of their worst mistakes, in perpetuity. 

Using these euphemisms allows us to pass punitive, regressive, and repressive reentry policies that do not account for the humans at the center of the laws.  These policies, consequently, are bad for everyone in our community. 

It is worth the extra syllables to put the people back in our reentry jargon: people with conviction histories, people who have been involved in the criminal justice system, and people who have turned their lives around following contact with law enforcement. 

Dishonorable Mention for “ex-felon,” “ex-convict,” and the ever-popular “ex-offender” 

These terms, like their non-“ex” counterparts, not only reduce people to the very worst thing they have ever done, but also give the false impression that there is a legal remedy—a path—to end one’s status as “felon” or “convict” or “offender.” In family court, a divorce can turn someone into an “ex.” There is no way to officially become an “ex” to the criminal justice system. Even a pardon—the holy grail that so few Californians receive—restores only a few rights and does not expunge the conviction record. 

For reentry policy to succeed, we need meaningful policies that recognize, celebrate, and incentivize people’s permanent exit from the criminal justice system. The first step is cleaning up our vocabulary. 

But replace the offending terms with what? The preceding list of complaints includes too few suggested solutions. Efforts to change the way to talk about, and consequently think and legislate about, reentry policy are underway. But we reentry advocates know that we are playing the long-game. That’s where our law students come in: They will soon be leading reentry policy work and creating terms that better describe our clients and reentry challenges. And we cannot wait to hear what they come up with. 

Eliza Hersh is Director of EBCLC’s Clean Slate Practice.