The Federal Reserve Board holds the key to why Donald Trump could easily become the next president of the United States, and it has nothing to do with monetary policy. This key is something street lawyers have been talking about for the past few years: People are broke, frightened, and therefore angry.
As reported in this month’s Atlantic, the board’s most recent survey about the financial and economic status of American consumers reflects a shocking truth: Almost half of Americans could not — no, strike that — cannot come up with $400 to meet a sudden emergency. According to the Fed’s poll, 47 percent of us would be required to sell something or borrow funds to generate that kind of cash.
I wasn’t surprised to read that. Since the crash in 2008, the number of folks calling our office requesting our pro bono help has grown. Indeed, it’s not uncommon to get such requests almost daily.
Lawyers have a professional duty, arising from our code of ethics, to provide service free of charge to those in need. But how much must a lawyer provide? The rules don’t provide guidance. For that, we look to such things as the cost of running an office. Almost every lawyer I know is struggling to keep the lights on these days.
Not long ago, I received a call from a relative of a person locked up and in need of counsel. It was hard to tell from this first call just what the incarcerated potential client was looking to accomplish, so I quoted a fee in a range sufficient to get us started, but open-ended enough to permit us to ask for more if the work became complex.
Another family member then called offering to put up some money, but he, too, seemed unclear about what he was paying for. We needed to speak to the client.
When the prisoner called a day or so later, I was relieved. Presumably, the client would know what needed doing.
As we discussed the task, it became clear the work would be involved. I quoted the fee it would take to get my office involved.
“I was looking for pro bono help,” the client said, in an almost entitled tone. It struck a nerve. At this point, we’d already spent far too much time courting the family, which appeared prepared to pay for service.
“Well, I’m look for a paying client,” I replied.
The conversation ended abruptly. It rankles me when folks decide they have a right to be recipient of my charitable acts. Our office gives away plenty of time, but, call it misplaced pride if you like, we generally reserve the right to decide to whom we shall give our time and energies.
So what has all this to do with Donald Trump?
His victory this week in the Indiana primary makes him the presumptive Republican nominee. Although he has yet to reach the number of delegates needed to be nominated, his chief rival, Ted Cruz, suspended his candidacy. Trump is likely to be the Republican candidate for president in this year’s race.
That result was unthinkable to the political establishment not long ago. It remains unthinkable to many folks. Trump is a political virgin, a brash tycoon with the temperament of an impatient cabby. Can this man be president?
The answer is yes. His call to “Make America Great Again” is the cry of wounded people. The 47 percent who cannot scrape of $400 in a crisis are tired of hearing about an American creed offering opportunity and hope to the world: they just want to feel solid ground beneath their feet. These are Trump’s people.
The chattering class does not get this. It cannot get this. A commentator well-connected enough to be invited to appear on television or write opinion pieces is well-heeled enough to have the leisure to worry about other people’s troubles. A person worried about next week’s groceries does not.
I watched one anguished commentator proclaim that Trump is a threat to the American creed, and all for which this country stands. We are a people dedicated to tolerance of others, to opportunity for fall, a beacon of hope to the world. He sounded like a he was delivering a eulogy at the wake of a man who died in old age, recalling just how much the man loved playing baseball — decades ago, as a youngster on a Little League team.
There is no American creed. The nation is not a church, a confessional community devoted to a common faith. It never has been. The glowing rhetoric about being a “City on a Hill” — language that resonates from our Puritan past — is, quite frankly, a form of national narcissism we need to outgrow.
Not long after Massachusetts Bay Colony’s Governor John Winthrop gave his sermon “A Model of Christian Charity” to settlers in 1630, others began to pass out blankets infected with smallpox to native Americans, the better to clear the continent for conquest.
Hillary Clinton, the presumptive Democrat nominee, who, by the way, can’t quite put Bernie Sanders’s insurgency to rest, just doesn’t get it. She’s still preaching the gospel of self-congratulation: We must tolerate all, open our borders to the world, remove the barriers to advancement.
A tired, angry, and broke American public wonders — who is going to pay for all that? Identity politics is a luxury many folks believe we can’t afford.
It would not surprise me to see Donald Trump in the White House a year from now. He’d be representing a people who have lost confidence in their role in the world. To these people, the American Century is over. They don’t want to be required to be better than the world around them; they want the right to protect their own interests.
Donald Trump versus Hillary Clinton? A surprising number of lawyers I am talking to are saying, some with a blush, that they will vote for Trump. Why? I suspect that they’re thinking of the 47 percent — the folks who can’t cope with a $400 crisis. Hillary is running on a platform that says we need to give more. Trump is saying that until we take care of ourselves, we cannot take care of others.
Don’t minimize Trump’s chances.
If your child suffers a serious unexplained injury, the state just might seek to terminate your parental rights. It will do so in a closed courtroom, where the public never gets the right to know what passes for justice.
Termination of parental rights is the moral equivalent of the death penalty. A court can transform you into a stranger to your child, having no more right to raise her, or even see her, than you do a child one thousand miles away whose name you’ll never hear. Your children will be given to strangers to raise.
These cases are uniquely heartbreaking.
In some cases, few would argue that parental rights should be terminated. Some parents cannot do the job of childrearing; others can do the job, but chose to behave in ways that are so injurious to their children that their children are better off without them.
Making difficult judgments in these cases should not be a matter of guesswork. The courts need to be exacting in sifting through the evidence in termination matters.
Yet state law permits termination on flimsy evidence.
State law permits the state to seek termination of parental rights when a child suffers “nonaccidental or inadequately explained serious physical injury”. In such cases, the law holds that an unexplained injury is “prima facie evidence” of “acts of parental commission or omission sufficient” to justify termination.
Don’t be put off by the Latin term. Prima facie merely means “at first look” or “on its face.” In other words, prima facie means just enough evidence to start a case. It isn’t necessarily enough to win it, mind you. It’s just enough to get you in the door, and to keep you in courtroom.
Suppose you have a young child. He or she suddenly complains of pain, or, if the child is too young to speak, suddenly appears to be in pain. You do what any good parent does: you take the child to a doctor. Upon examination, the doctor discovers a hairline fracture.
Is that a serious injury? Most likely.
The doctor asks you how the injury occurs. You have no answer. Now what?
Health-care workers are what the law calls mandated reporters. They are required to report suspected cases of child abuse to the Department of Children and Families. A child with a serious unexplained injury is likely to be reported. What happens then?
The state begins an investigation. Suddenly, a social worker appears at your door; perhaps the state has already filed a motion for temporary custody, an emergency procedure to remove the child from your home.
The social worker asks: How was your child injured?
You answer: I don’t know.
Suddenly, your relationship with your child is at risk. Even if you did nothing to injure your child and are truthful, the state can conclude, and sometimes does conclude, that you are unfit to raise the child. The unexplained injury is, on its face, evidence of a parental act or omission sufficient to justify termination.
You read that right: You need do nothing wrong at all to lose your child.
DCF will cry foul and say this doesn’t happen. It only acts for good cause. But it’s not that simple.
Most of us intuitively understand that doing some things are so wrong as to justify serious consequences: Intentionally breaking the limb of your infant son is a shocking sort of offense that calls into question the health of the parent-child relationship.
But suppose there is an injury, and you don’t know how it happened? In DCF’s mind, you’re guilty anyhow. Why? You’ve omitted the responsibility to keep a close eye on your kids.
It is this later theory termination due to omission that is so frightening. You can be a good parent, and a good person, without knowing how your child acquired every bump and bruise. The world is filled with malignant contingencies. No parent can protect their child from every conceivable harm.
How many parents have lost their children to the state through no fault of their own?
Of course, parents have the right to fight termination proceedings in court. In such cases, no jury weighs the evidence. The right to decide the case is given to a single judge. I’m uncomfortable giving these decisions to judges. Juries should decide them.
Social scientists sometimes speak of the phenomenon of agency capture. That’s where regulators develop too cosy a relationship with the industry they oversee: They become, as it were, captured by those whom they police. Can judges get too cosy with the agency over whose cases they routinely sit? I suspect so.
Try reassuring a parent facing the parental death penalty that justice will be done when they are accused simply of not being able to explain something. It is a terrifying prospect: I’ve seen grown men weep on the witness stand in such cases.
These cases should be aired in open court so that the public can express either approval or disapproval of the decisions DCF makes in seeking to terminate parental rights. It’s too easy for the goody-two-shoes in DCF to waive the “best interest of the child” banner, the legal standard under which the agency acts, at every passing phantom.
Trying these cases in closed courts is simply wrong.
The policy supporting closed courtrooms is designed to protect children. It makes some sense. Minors have their entire lives ahead of them. The young, especially infants and toddlers, have no voice.
But the courts are public institutions. They administer the rule of law. Transparency in the law is important. It builds public confidence in our institutions. What’s more, public participation helps foster a climate in which necessary reforms can be sought.
At a minimum, lawmakers should conduct a review of how DCF is using the statute to permit unexplained injuries to serve as a basis for termination of parental rights. I can’t talk about the juvenile cases I’ve handled — the law forbids it. So let me end on this note: What I’ve seen sickens me. It would sicken you, too, if you were permitted to see it.