Rural Legal Scholarship: A Low-ball Defense

Maybell Romero of Northern Illinois University College of Law is work-shopping this paper, about privatization of indigent defense, on Wednesday, Dec. 2, on Zoom, sponsored by the SMU Deason Center for Criminal Justice Reform.  You can register here.  The abstract follows: 

Scholars and policymakers have begun to focus on the deleterious effects of the privatization of different functions in both the criminal adjudicative system and criminal legal system on the whole. Much of this attention lately has been directed to privatized police forces, privatized prisons, and even privatized prosecutors. As important as the examination of privatization and outsourcing in these arenas is, the role of the privatized public defender—particularly, the rural public defender—gets lost in the shuffle. This Article highlights such public defenders, especially in the rural context, and the specific ethical conundrums that arise when local governments such as counties and cities decide to privatize their public defense services through the use of competitive bidding. It conducts a case study from a small jurisdiction in Northern Utah to throw these difficulties into stark relief. The Article then discusses the specific perverse incentives that rural public defenders face and the burden under which their services are procured by way of competitive bid, not with the intention of arguing that such services should never be bid out but rather that any jurisdiction using such a system should be fully cognizant of the risks they incur when choosing to do so. The Article then suggests potential interventions that may be employed to mitigate or even eliminate some of the troubling aspects of using competitive bidding to procure rural indigent defense services.

David Brooks takes up the rural-urban divide in Election 2020

In today's New York Times, David Brooks takes up the influence of the rural-urban divide on the 2020 election.  The headline is "The Rotting of the Republican Mind," and the part highlighting geography's role is here: 

While these cities have been prospering, places where fewer people have college degrees have been spiraling down: flatter incomes, decimated families, dissolved communities. In 1972, people without college degrees were nearly as happy as those with college degrees. Now those without a degree are far more unhappy about their lives.

People need a secure order to feel safe. Deprived of that, people legitimately feel cynicism and distrust, alienation and anomie. This precarity has created, in nation after nation, intense populist backlashes against the highly educated folks who have migrated to the cities and accrued significant economic, cultural and political power. Will Wilkinson of the Niskanen Center calls this the “Density Divide.” It is a bitter cultural and political cold war.

And speaking of Wilkinson, he has the second most read piece on the New York Times website right now, "Why Did So Many Americans Vote for Trump?"  Wilkinson's commentary centers mostly on the pandemic and contrasting responses by Democrats and Republicans, and it mentions geography only in passing, the "density" concept not at all.  

The president’s mendacious push to hastily reopen everything was less compelling to college-educated suburbanites, who tend to trust experts and can work from home, watch their kids and spare a laptop for online kindergarten. Mr. Trump lost the election mainly because he lost enough of these voters, including some moderate Republicans who otherwise voted straight Republican tickets.

He contrasts those suburbanites who (presmptively) have white collar jobs with "working-class breadwinners who can’t bus tables, process chickens, sell smoothies or clean hotel rooms over Zoom."

Wilkinson, who's pretty far left, adds: 

Democrats need to rethink the idea that these voters would have put Democratic House and Senate candidates over the top if only Alexandria Ocasio-Cortez were less radiantly socialist. They need to accept that they took hits on the economy by failing to escape the trap Republicans set by doggedly refusing to do anything about the uncontained contagion destroying it.

Other ideas on how the rural-urban divide is influencing our nation's political landscape can be found in two podcasts I've listened to in the past few days, from the Trillbilly Workers Party and Densely Speaking.   Among other interesting matters, the former mentions Bill Bishop's The Big Sort as gospel, while the latter suggests that trend is reversing.  

Pitting food security against rural America?

That pitting is what this New York Times story by Jonathan Martin appears to do in relation to who will be Biden's Secretary of Agriculture: 

An unlikely fight is breaking out over President-elect Joseph R. Biden Jr.’s choice for agriculture secretary, pitting a powerful Black lawmaker who wants to refocus the Agriculture Department on hunger against traditionalists who believe the department should be a voice for rural America.

Representative James E. Clyburn of South Carolina, the highest-ranking Black member of Congress and perhaps Mr. Biden’s most important supporter in the Democratic primary, is making an all-out case for Representative Marcia L. Fudge of Ohio, an African-American Democrat from Ohio.

* * *

“It’s time for Democrats to treat the Department of Agriculture as the kind of department it purports to be,” he added, noting that much of the budget “deals with consumer issues and nutrition and things that affect people’s day-to-day lives.”

But there are complications. Two of Mr. Biden’s farm-state allies are also being discussed for the job: Heidi Heitkamp, a former senator from North Dakota, and Tom Vilsack, the former Iowa governor who served as agriculture secretary for President Barack Obama.

* * *  

And nowhere did Mr. Biden fare worse than in rural America, particularly the most heavily white parts of the farm belt.

Martin quotes Heitkamp:  

This is a choice that only Joe Biden can make, and he will make it understanding the unique challenges of rural America and what needs to happen in rural America moving forward.

My question is perhaps naive, but I rally don't understand why this agency cannot and should not play both of these important roles.  And I say that as someone who benefited from "commodities" (free food via USDA programs) as a child and who grew up to advocate for more federal investment in rural America.  

An update on Oceano Dunes, on California's Central Coast

I posted this about 16 months ago regarding the use of a part of California's Central Coast for off-roading.  Now, CalMatters has published a piece picked up by the High Country News, about the conflict between those recreational off-roaders and environmentalists.  The High Country News piece is headlined, "The dust-up over California's off-road beach," and Julie Cart reports.  When published in Cal Matters it was headlined, "A 40-year conflict over a state park: Has it finally reached a breaking point?"  Here's an excerpt: 

The park south of San Luis Obispo is the last state beach where visitors can legally race their 4X4s, dirt bikes and monster trucks. At night, thousands of visitors fire up RV generators or pitch tents, creating bustling mini-cities on the sand.

But these same 1,500 acres of dunes and six miles of beachfront are also home to two federally protected birds that build their nests in the sand, making them extraordinarily vulnerable. Every year at Oceano, some of the rare birds are inadvertently squashed under the wheels of off-road vehicles racing across the dunes.

Oceano Dunes is arguably the most contested stretch of sand in California, an unlikely stage for 40 years of broken agreements and laws, governmental infighting, serial lawsuits and charges that the state has prioritized motorized recreation and imperiled endangered species and other beachgoers.

The push and pull of allowing for the enjoyment of nature while ensuring its preservation is an age-old dilemma in California, but nowhere is it more fraught than at Oceano.

Now the decades-long debate over the future of these dunes has reached a climax: The California Coastal Commission has issued an unprecedented cease and desist order to its sister agency, the state Department of Parks and Recreation, signaling that the commission has moved the conflict into uncharted legal territory.

Coronavirus in rural America (Part C): Miscellaneous

Here are a coupla' recent stories touching on geography--including rurality--and the coronavirus pandemic.  

From the Wall Street Journal on Nov. 16, 2020, "Covid-19 is resurging, and this time it's everywhere."  Betsy McKay and Erin Ailworth report.  

From the New York Times on November 12, 2020 (updated Nov. 20. 2020), "What Places Are Hardest Hit by the Coronavirus? It Depends on the Measure."  The story is by Mitch Smith, Amy Harmon, Lucy Tompkins and Thomas Fuller, and its subhead is "By different metrics, all sorts of locations in the United States are deeply troubling, from Minot, N.D., to New York City."  Among the places featured that are rural by some measure, in addition to Minot, North Dakota, is Avenal State Prison in California's San Joaquin Valley.  

On a wastewater crisis in the rural south--and a MacArthur genius grant to a woman trying to solve it

Two stories today reported on the rural South's wastewater crisis today.  The first is from NPR, and it prominently features one of this year's MacArthur genius grant recipients, Catherine Coleman Flowers.  An excerpt from the story follows: 

Hookworm is an intestinal parasite often associated with poor sewage treatment and the developing world. It was long thought to have been eradicated from the United States — until a 2017 study revealed otherwise.

According to the study, more than one in three people in Alabama's Lowndes County tested positive for hookworm infection.

Hookworm spreads when people walk or play in soil contaminated with feces and the larvae of the worms penetrate their skin.

"This is not something that we test for in the U.S. because people don't anticipate that we have it," says activist and author Catherine Coleman Flowers.

It was Flowers' activism that spurred scientists to conduct the hookworm study. For 20 years, she's worked with advocacy organizations, philanthropists, business leaders and elected officials to shed light on the gaps in access to basic sanitation in rural America.

The other story is in the New Yorker, and it features Flowers far less prominently.  Here, the sanitation issue takes center stage.  Alexis Okeowo reports, with this quote from relatively deep in the story:

In Alabama, not having a functioning septic system is a criminal misdemeanor. Residents can be fined as much as five hundred dollars per citation, evicted, and even arrested. Rush’s sister Viola was once arrested for a sewage violation. But installing a new system can cost as much as twenty thousand dollars, which is more than the average person in Lowndes County makes in a year. Instead, Rush, like her neighbors, used a pipe to empty waste into the grass outside—a practice, called straight-piping, that is not uncommon in much of rural America. (At least one in five homes in the U.S. is not on a municipal sewer line.) Floods carry sewage across people’s lawns and into their living areas, bringing with it the risk of viruses, bacteria, and parasites that thrive in feces. Studies have found E. coli and fecal coliform throughout the Black Belt, in wells and in public waters. A United Nations rapporteur on extreme poverty, visiting in 2017, said that the sewage problem was unlike anything else he had encountered in the developed world. “This is not a sight that one normally sees,” he said.

Rush’s situation got so bad that, in 2017, her sister Barbara sent a Facebook message to an environmental activist named Catherine Coleman Flowers. For two decades, Flowers has helped people struggling with sewage problems in Alabama. (She was recently named a MacArthur Fellow.) A petite woman of sixty-two, with a gentle drawl and a no-nonsense demeanor, Flowers is a reassuring presence; she grew up in Lowndes County and is distantly related to Rush, as she is to many people in the area. Still, she was shocked when she saw the trailer. “She showed me how they were living, and I cried,” Flowers told me.

I think (hope!) we'll be hearing more about these events and the attention that needs to brought to bear on this developing world problem in the (U.S.) American south.

Finally, here is the New York Times review of Coleman Flowers book,  Waste:  One Woman's Fight Against America's Dirty Secret. Anna Smith writes under the headline, "How the Problem of 'Waste' Affects the Rural Poor."  Here's an excerpt: 

In Lowndes County, a swath of rural land between Selma and Montgomery, as many as 90 percent of households have failing or inadequate systems for managing wastewater. This is structural poverty, Flowers writes, and it’s hardly a localized problem. From rural Appalachia to the suburbs of St. Louis to Allensworth, the California town that was the state’s first to be founded by African-Americans, “Waste” follows Flowers as she discovers that the failure to invest in infrastructure is pervasive nationwide. The consequences are life-threatening, but often invisible to those who live and work in communities with more political clout. 

* * * 

On top of all that, it’s not uncommon for people to face eviction and even arrest because of this scarcity of resources. Not having a septic system puts [poor rural folks] at risk.

It can also cause them to face criminal charges.  

The title “Waste,” then, has a double meaning. It signifies both the literal fact of waste and the loss of so much time, energy, money and even lives. What potential might be unleashed in a world where people have their needs met?

And that seems to be the $6 million question everywhere I look these days.  In any event, Waste sounds like a powerful read.  

Coronavirus in rural America (Part XCIX): Urban and rural places compete for hospital beds

That's the gist of this NPR story today out of Kansas City, Missouri, reported by Alex Smith.  Here's the salient excerpt:    

Dr. Marc Larsen leads COVID-19 treatment at Saint Luke's Health System in Kansas City, where a recent count showed a quarter of the hospitalized COVID-19 patients came from outside of the metro.

MARC LARSEN: Not only are we seeing an uptick in the patients in our hospital from the rural community, they're sicker when they - when we get them because they're able to handle, you know, the less-sick patients.

SMITH: Larsen says that two-thirds of patients coming from rural areas need intensive care and stay in the hospital for an average of two weeks.

LARSEN: And we get the sickest of the sick.

SMITH: Dr. Rex Archer is the head of Kansas City's Health Department. He warns that the city's 33 hospitals are put at risk by the influx of rural patients.

REX ARCHER: We've had this huge swing that's occurred because they're not wearing masks. And, yes, that's putting pressure on our hospitals, which is, you know, unfair to our residents that might be denied an ICU bed.

Here's another story by Smith for the Kansas City NPR affiliate, this one from three weeks ago.   

Coronavirus in rural America (Part XCVIII): The news out of rural places gets worse

NPR featured this story by South Dakota journalist Seth Tupper this morning.  It contrasts the South Dakota response to the virus (nil) with the Vermont response (robust), noting that both states are by some measure rural AND governed by Republican executives.  

Also, I recommend this very powerful podcast from The Daily (New York Times), about the situation in rural Wisconsin, where a Democratic state legislator in a very red/Republican area has been hyper-prepared for the pandemic since March, when she rented a refrigerated van in case it was needed if funeral homes could not accommodate all of the bodies.  

Among other stories I heard or read today that had a rural angle:  hospitals in Kansas City turning down requests for ICU transfers from places "as far away as Arkansas."  (Do reporters realize that Arkansas is contiguous with Missouri?).  Also, the news out of Arkansas, my home state, is frightful:  The governor only yesterday put in place the state's first mandatory precaution:  bars and restaurants that serve alcohol must close by 11 pm.  Seems a day late, a dollar short.  And/or, as my more crass relatives might say, half ass and piss poor. 

Small town government run amok (Part VIII): New Mexico county literally loses (as in, misplaces) a fire truck

The Albuquerque Journal reported today out of Mora County, New Mexico, population 4500.

Fake invoices, stolen records, a firetruck gone missing and thousands of public dollars paid to family members for little to no work.

Those are just some of the findings against the Mora County Volunteer Fire Department issued by the state Auditor’s Office on Wednesday. The 86-page report details years of alleged fiscal misappropriations by county officials, which could eventually result in future arrests.

In total, investigators found an estimated $335,000 in unsubstantiated purchases and numerous violations committed by employees of the county, including potential embezzlement and fraud.

Here are quotes from the State Auditor, Brian Colon, and his report:

It appears a particular family and group of friends dishonestly benefited from the county’s taxpayers’ public funds.  

At the end of the day, it all just adds up to a complete breakdown in the system.  People who were placed in supervisory positions failed to do their job.

A fire truck valued at $81,000 is among the assets missing.  

The story also quotes county County Attorney Michael Aragon, who initially brought the issues to the attention of the state after his office completed an initial investigation in 2019. 

It’s even more offensive because these funds were specifically allocated to provide public safety and protection. It’s just heartbreaking.

My own theory on this is well known to those who read the blog:  too little human capital in such locales and therefore too few checks and balances on those with power.  You can find a few other posts about volunteer fire departments here on Legal Ruralism, too.  

Fox News highlights Obama "Bittergate" comments from new memoir

Bradford Betz reports under the headline, "Obama says controversy over infamous ‘bitter’ comments about small-town Americans still ‘nags at me’":  

Former President Barack Obama says the controversy sparked by his infamous comments about white working-class voters being “bitter” and clinging “to guns or religion” still nags him because it misconstrued his genuine sympathy for the same people who perceived him to be out of touch.

Obama made the comments in a passage from his new book, “A Promised Land,” the first volume of his presidential memoirs, released Tuesday.

The former commander in chief addressed controversial comments he made on April 6, 2008, while on the campaign trail. During a fundraising event in San Francisco that evening, Obama was recorded making off-the-cuff remarks about white working-class voters in small towns.

Obama made the comments in a passage from his new book, “A Promised Land,” the first volume of his presidential memoirs, released Tuesday.

The former commander in chief addressed controversial comments he made on April 6, 2008, while on the campaign trail. During a fundraising event in San Francisco that evening, Obama was recorded making off-the-cuff remarks about white working-class voters in small towns.

* * * 

In his memoir, Obama said he wished he could take his comments back and offered an amended version: “It’s not surprising then that they get frustrated … and they look to the traditions and way of life that have been constants in their lives, whether it’s their faith, or hunting, or blue-collar work, or more traditional notions of family and community. And when Republicans tell them we Democrats despite these things — or when we give these folks reason to believe that we do — then the best policies in the world don’t matter to them.”

I wrote nearly a whole law review article about these comments, The Geography of the Class Culture Wars, published in 2011.

Coronavirus in rural America (Part XCVII): Distributing a vaccine to remote locales

Pro Publica reported a few days ago on the challenge of distributing the coronavirus vaccine to remote locales, like those in Indian Country. The headline is "Most States Aren’t Ready to Distribute the Leading COVID-19 Vaccine," and Isaac Arnsdorf, Ryan Gabrielson and Caroline Chen report:  

As the first coronavirus vaccine takes a major stride toward approval, state governments’ distribution plans show many are not ready to deliver the shots.

The challenge is especially steep in rural areas, many of which are contending with a surge of infections, meaning that access to the first batch of COVID-19 vaccines may be limited by geography.

* * * 

The Pfizer vaccine is unusually difficult to ship and store: It is administered in two doses given 21 days apart, has to be stored at temperatures of about minus 100 degrees Fahrenheit and will be delivered in dry ice-packed boxes holding 1,000 to 5,000 doses. These cartons can stay cold enough to keep the doses viable for up to 10 days, according to details provided by the company. The ice can be replenished up to three times. Once opened, the packages can keep the vaccine for five days but can’t be opened more than twice a day. The vaccine can also survive in a refrigerator for five days but can’t be refrozen if unused.

Health officials haven’t figured out how to get the ultracold doses to critical populations living far from cities, according to a ProPublica review of distribution plans obtained through open records laws in every state. Needing to use 1,000 doses within a few days may be fine for large hospital systems or mass vaccination centers. But it could rule out sending the vaccine to providers who don’t treat that many people, even doctors’ offices in cities. It’s especially challenging in smaller towns, rural areas and Native communities on reservations that are likely to struggle to administer that many doses quickly or to maintain them at ultracold temperatures.