The Economist - USA (2019-09-28)

24 United States The EconomistSeptember 28th 2019

2 whether a border-patrol agent can be sued

for shooting and killing a Mexican boy

across the southern border. The justices

will also sort out a two-year-long fight over

Donald Trump’s attempt to wind down De-

ferred Action for Childhood Arrivals, or

daca, Barack Obama’s programme grant-

ing relief to undocumented immigrants

who arrived as children. Challengers and

several courts have said the rollback was

“arbitrary and capricious”, in violation of

the Administrative Procedures Act.

A significant Second Amendment case

involving a gun regulation in New York

City is scheduled for argument on Decem-

ber 2nd. But after the Supreme Court said it

would review the constitutionality of the

law—which prohibits New York City resi-

dents with firearms licences from taking

their guns to the suburbs—the rule was re-

scinded. The plaintiffs, anxious to fortify

the individual “right to bear arms”, have

implored the Supreme Court to keep the

case on its docket. But New York says there

is “no ongoing injury” to the aggrieved gun

owners and no controversy left to adjudi-

cate. On October 1st, when the justices meet

privately to review reams of petitions that

have piled up over the summer, they will

discuss whether to scrapNew York State Ri-

fle & Pistol Association Inc. v City of New York

or carry on as planned.

Other notable cases among the 50 the

justices have already agreed to hear include

a driver’s privacy row in Kansas; fallout

from the 2013 “Bridgegate” scandal in New

Jersey; and a church-state fight in Mon-

tana. Several budding petitions could make

headlines, too. An immigration case that

Stephen Vladeck, a law professor at the

University of Texas, says may have “sweep-

ing ramifications” asks if undocumented

immigrants on American soil have a con-

stitutional right to judicial review when

being detained or deported. A case involv-

ing Louisiana abortion-clinic regulations

nearly identical to rules the court struck

down as an “undue burden” in 2016 gives

the new conservative bloc a first swipe at

pushing back abortion rights.

According to Kate Shaw, a professor at

Cardozo law school, “it seems almost cer-

tain” that the limits of presidential power

will soon be another point of contention.

Likely subjects include the president’s

push for the power to remove the director

of the Consumer Financial Protection Bu-

reau, executive privilege in battles over tax

returns, a crackdown on asylum, emergen-

cy funding for a border wall and the presi-

dent’s ability to block critics on Twitter.

In April Mr Trump tweeted that if “the

partisan Dems ever tried to impeach”, he

would “first head to the usSupreme Court”.

By narrow votes, the justices have backed

several of the president’s controversial

moves, but Mr Trump should not expect

them to come to his rescue during impend-

ing impeachment proceedings. In 1993

ChiefJusticeWilliamRehnquistwrotefora

unanimouscourtthatimpeachmentau-

thority“isreposed”inCongress,“andno-

whereelse”.Still,if theHouseofRepresen-

tativeswindsupimpeachingMrTrump,

thepolitics-shyChiefJusticeJohnRoberts

willfindhimselfplayinga constitutionally

requiredroleheisunlikelytorelish:pre-

sidingoverthepresident’sremovaltrialin

theUnitedStatesSenate. 7

K

athleen Merchant was already on

probation when she got into an argu-

ment with her room-mate, who called the

Indianapolis police. Ms Merchant was tak-

en to jail, where she languished for three

weeks because she neither had nor knew

anyone with $500 for her bond. Eventually

the Bail Project, a national non-profit that

pays people’s bail, came to her rescue.

But as a condition of her release, she

had to wear an ankle monitor. In this, Mar-

ion County, where Indianapolis sits, be-

haves like many other counties. It charges

those who wear monitors for the privilege;

Ms Merchant paid $13 per day plus a $50 ac-

tivation fee. This is a hefty burden for

someone like Ms Merchant, who has nei-

ther a job nor a stable home. Her lawyer

warned that if she objected to the fee, she

would be sent back to jail, so she kept quiet.

But, as she notes, “just because you say I

have to pay $50 doesn’t make me have $50.”

Ms Merchant’s story is not unusual.

Electronic monitoring (em) is increasingly

seen as an alternative to cash bail, which

has come under fire recently for two rea-

sons. First, because the political and legal

winds are shifting against keeping people

locked up simply because they cannot

come up with a few hundred dollars for

bail. Second, because bail keeps jails over-

crowded, whereas emlets people await

trial at home. Most places that use em

charge for it, just as many jurisdictions

charge inmates for their own imprison-

ment. But as jurisdictions reject one type of

injustice, they risk instituting another. em

tends to come with high fees and at times

impossible conditions.

The fees vary by jurisdiction and even

by judge. Finding comprehensive national

data is all but impossible. Some in Marion

County—which a number of experts say

has America’s highest rates of emuse—pay

more than Ms Merchant, though fees are

capped at $14 an hour. Others pay less if

they can convince a judge that they are

poor, or if they successfully complete what

Ms Merchant and others familiar with the

system describe as a burdensome and con-

fusing financial application for relief.

“John”, a defendant in Louisiana, says

he paid $180 a month for his monitor, as

well as $250 to repay the loan for his bail.

Officials often maintain that the fees are

intended to cover costs, but sometimes

they exceed them. The sheriff of Kane

County, Illinois told a local newspaper that

monitoring costs $3.75 a day, even though

wearers are charged $10.

Conditions also vary. The Cook County

Sheriff’s Office says that wearers “are often

granted permission” to work or attend col-

lege. But Sharlyn Grace, director of the Chi-

cago Community Bond Fund, says that

though it is theoretically possible to get

permission, “in reality it’s hard to obtain”.

And although granting permission for

regular working hours is easy enough,

many low-wage jobs have schedules that

vary, often with little notice. Wearers who

go to work without that permission could

be returned to jail. Monitors are gps-tagged

and sound an alarm when the wearer is not

where he is supposed to be. John says he

was fired because his curfew prevented

him from working when he was needed.

Then there are child-care emergencies,

groceries to buy and errands to run.

Alarms also sound when a device’s bat-

teries run down or when the signal is lost.

Ms Merchant said she was on an unexpect-

edly long bus ride from a job interview

when her device began beeping. She was

reduced to pleading with businesses to let

her plug herself into the wall for two hours

to recharge her monitor. Trailers’ metal

walls can block the signal, triggeringan

alert. In these situations, wearers must

INDIANAPOLIS

An alternative to cash bail comes with

its own costs

Electronic monitoring

Pricey tags

1