Tuesday, 20 August, 2019

Report of the Special Rapporteur on extreme poverty and human rights on his mission to the US (Part 2)

Social protection for children

37. Appropriate cognitive and socio-emotional stimulation, adequate nutrition and health care, and stable and secure environments early in life are all essential ingredients in maximizing children’s potential and achieving optimal life outcomes. Empirical evidence suggests strong correlations between early childhood poverty and adverse life outcomes, particularly those related to achievement skills and cognitive development.

38. From this perspective, the shockingly high number of children living in poverty in the United States demands urgent attention. In 2016, 18 per cent of children (13.3 million) were living in poverty, and children comprised 32.6 per cent of all people in poverty.50 About 20 per cent of children live in relative income poverty, compared to the OECD average of 13 per cent.51 Contrary to stereotypical assumptions, 31 per cent of poor children are White, 24 per cent are Black, 36 per cent are Hispanic and 1 per cent are indigenous.52 This is consistent with the fact that the United States ranks 25th out of 29 industrialized nations in investing in early childhood education.53

39. Poor children are also significantly affected by the country’s crises regarding affordable and adequate housing. On a given night in 2017, about 21 per cent (or 114,829) of homeless individuals were children.54 But this official figure may be a severe underestimate, since homeless children temporarily staying with friends, family or in motels are excluded from the point-in-time count.55 According to the Department of Education, the number of homeless students identified as experiencing homelessness at some point during the 2015/16 school year was 1,304,803.56

40. The infant mortality rate, at 5.8 deaths per 1,000 live births, is almost 50 per cent higher than the OECD average of 3.9.57 On a positive note, the United States has increased health insurance coverage for children through the expansion of Medicaid and the Children’s Health Insurance Program, bringing child health insurance rates to a historic high of 95 per cent.58 These achievements are, however, under threat, as discussed below.

41. In addition, the Supplemental Nutrition Assistance Program kept 3.8 million children out of poverty in 2015,59 and in 2016, the earned income tax credit and the child tax credit lifted a further 4.7 million children out of poverty.60 By contrast, the reach and impact of the Temporary Assistance for Needy Families programme has been very limited. In 2016, only 23 per cent of families in poverty received cash assistance from that programme, and the figure is less than 10 per cent in a growing number of states.

Adult dental care

42. The Affordable Care Act greatly expanded the availability of dental care to children, but not for adults. Some 49 million Americans live in federally designated “dental professional shortage areas” and Medicare (the programme for the aged and those with disabilities) does not cover routine dental care.62 The only access to dental care for the uninsured is through the emergency room, where excruciating pain can lead to an extraction. Even for those with coverage, access is not guaranteed, as only a minority of dentists see Medicaid patients.63 Poor oral hygiene and disfiguring dental profiles lead to unemployability in many jobs, being shunned in the community and being left unable to function effectively. Yet there is no universal programme to address those issues, which fundamentally affect the human dignity and ultimately the civil rights of the persons concerned.

C. Reliance on criminalization to conceal the underlying poverty problem

Criminalization of the homeless

43. The official point-in-time estimates of homelessness in 2017 show a nationwide figure of 553,742, including 76,501 in New York, 55,188 in Los Angeles and 6,858 in San Francisco.64 There is ample evidence that these figures significantly underestimate the actual scale of the problem.

44. In many cities, homeless persons are effectively criminalized for the situation in which they find themselves. Sleeping rough, sitting in public places, panhandling, public urination and myriad other offences have been devised to attack the “blight” of homelessness. The criminalization of homeless individuals in cities that provide almost zero public toilets seems particularly callous. In June 2017, it was reported that the approximately 1,800 homeless individuals on Skid Row in Los Angeles had access to only nine public toilets.65 Los Angeles failed to meet even the minimum standards the United Nations High Commissioner for Refugees sets for refugee camps in the Syrian Arab Republic and other emergency situations.

45. Ever more demanding and intrusive regulations lead to infraction notices for the homeless, which rapidly turn into misdemeanours, leading to warrants, incarceration, unpayable fines and the stigma of a criminal conviction that in turn virtually prevents subsequent employment and access to most housing. Yet the authorities in cities such as Los Angeles and San Francisco often encourage this vicious circle. On Skid Row in Los Angeles, 14,000 homeless persons were arrested in 2016 alone, an increase of 31 per cent over 2011, while overall arrests in the city decreased by 15 per cent.67 Citizens and local authorities, rather than treating homeless persons as affronts to their sensibilities and neighbourhoods, should see in their presence a tragic indictment of community and government policies. Homelessness on this scale is far from inevitable and reflects political choices to see the solution as law enforcement rather than adequate and accessible low-cost housing, medical treatment, psychological counselling and job training.68 The Right to Rest Act introduced in California, Colorado and Oregon is an example of the type of legislative approach needed to shift from the criminal justice response to a human rights-centred response to homelessness.

46. As the Special Rapporteur explained in more detail in his 15 December 2017 statement,69 coordinated entry systems to match housing supply for the homeless to demand have been introduced in Los Angeles, San Francisco and elsewhere. These are premised partly on the idea that homelessness is a data problem and that new information technologies are key to solving it.70 But despite the good intentions behind them, including the reduction of duplication and fragmentation in service delivery, coordinated entry systems simply replicate many problems associated with existing policy responses. They contribute to the process of criminalization by requiring the homeless to take part in an intrusive survey that makes many feel they “are giving up their human right to privacy in return for their human right to housing”.71 Many participants fear that police forces have access to data collected from the homeless; it could be concluded from conversations between the Special Rapporteur and officials and experts that this fear may well be justified. The introduction of coordinated entry systems has also been criticized for being costly and diverting resources and attention away from the key problem, which is the lack of available housing for those in need.72 New information technology-based solutions, such as coordinated entry systems, might bring improved reliability and objectivity, but the vulnerability scores they produce have been challenged for their randomness.

Treatment of the poor in the criminal justice system

47. In many cities and counties, the criminal justice system is effectively a system for keeping the poor in poverty while generating revenue to fund not only the justice system but many other programmes. The use of the legal system to raise revenue, not to promote justice, as was documented so powerfully in a 2015 report on Ferguson, Missouri by the Department of Justice,74 is pervasive around the country.

48. So-called fines and fees are piled up so that low level infractions become immensely burdensome, a process that affects only the poorest members of society, who pay the vast majority of such penalties. Driving licences are also commonly suspended for a wide range of non-driving related offences, such as a failure to pay fines.75 This is a perfect way to ensure that the poor, living in communities that have steadfastly refused to invest in serious public transport systems, are unable to earn a living that might have helped to pay the outstanding debt. Two paths are open: penury, or driving illegally, thus risking even more serious and counterproductive criminalization.

49. Another practice that affects the poor almost exclusively is that of setting large bail bonds for a defendant who seeks to go free pending trial. Some 11 million people are admitted to local jails annually, and on any given day more than 730,000 people are being held, of whom almost two thirds are awaiting trial, and thus presumed to be innocent. Yet judges have increasingly set large bail amounts, which means that wealthy defendants can secure their freedom while poor defendants are likely to stay in jail, with severe consequences such as loss of jobs, disruption of childcare, inability to pay rent and deeper destitution.

50. A major movement to eliminate bail bonds is gathering steam across the United States, and needs to be embraced by anyone concerned about the utterly disproportionate negative impact of the justice system upon the poor. The purpose of the reform is to link pretrial detention to risk rather than wealth. A growing number of jurisdictions are adopting risk assessment tools to assist in pretrial release and custody decisions. This is a positive development, but the widespread use of risk assessment tools also raises human rights concerns.

51. The fear is that highly political questions about the level of risk that society considers acceptable are hidden behind the veneer of technical design choices, that obscure algorithms disproportionally identify poor defendants as “high risk” by replicating the biased assumptions of previous human decision makers,76 and that private contractors who develop risk assessment tools will refuse to divulge their content on the grounds that the information is proprietary, which leads to serious due process concerns affecting the civil rights of the poor in the criminal justice system.77

52. Solutions to major social challenges in the United States are increasingly seen to lie with privatization, especially in the criminal justice system. Bail bond corporations, which exist in only one other country in the world, precisely because they distort justice, encourage excessive and often unnecessary levels of bail, and lobby for the maintenance of a system that by definition penalizes the middle class and the poor.78

53. In some states, minor offences are routinely punished by placing the offender on probation, overseen by a for-profit corporation, entirely at the expense of the usually poor offender. Those who cannot pay are subject to additional fees, supervision and testing.79 Similarly, in 26 states judges issue arrest warrants for alleged debtors at the request of private debt collectors, thus violating the law and human rights standards. The practice affects primarily the poor by subjecting them to court appearances, arrest warrants that appear on background checks, and jail time, which interfere with their wages, their jobs, their ability to find housing and more.80

D. Persistent discrimination and poverty

Race

54. The United States remains a chronically segregated society. Blacks are 2.5 times more likely than Whites to be living in poverty, their infant mortality rate is 2.3 times that of Whites, their unemployment rate is more than double that for Whites, they typically earn only 82.5 cents for every dollar earned by a White counterpart, their household earnings are on average well under two thirds of those of their White equivalents, and their incarceration rates are 6.4 times higher than those of Whites.81 These shameful statistics can only be explained by long-standing structural discrimination on the basis of race, reflecting the enduring legacy of slavery

55. Ironically, politicians and mainstream media portrayals distort this situation in order to suggest that poverty in America is overwhelmingly Black, thereby triggering a range of racist responses and encouraging Whites to see poverty as a question of race. Too often the loaded and inaccurate message that parts of the media want to convey is “lazy Blacks sponge off hard-working Whites”.

Gender

56. Women often experience the burdens of poverty in particularly harsh ways. Poor pregnant women who seek Medicaid prenatal care are subjected to interrogations of a highly sensitive and personal nature, effectively surrendering their privacy rights.83 Low-income women who would like to exercise their constitutional, privacy-derived right to access abortion services face legal and practical obstacles, such as mandatory waiting periods and long driving distances to clinics. This lack of access to abortion services traps many women in cycles of poverty.84 When a child is born to a woman living in poverty, that woman is more likely to be investigated by the child welfare system and have her child taken away from her.85 Poverty is frequently treated as a form of “child neglect” and thus as cause to remove a child from the home,86 a risk exacerbated by the fact that some states do not provide legal aid in child welfare proceedings.87

57. Racial discrimination makes matters even worse for many poor women. Black women with cervical cancer — a disease that can easily be prevented or cured — have lower survival rates than White women, due to later diagnosis and treatment differences,88 owing to a lack of health insurance and regular access to health care. The United States has the highest maternal mortality ratio among wealthy countries, and black women are three to four times more likely to die than White women. In one city, the rate for Blacks was 12 times higher than that for Whites.

58. In rural areas, women face significantly higher poverty rates, as well as related child poverty.90 In economically depressed areas of the Midwest, rural Appalachia and the deep south unemployment is high and essential services, such as childcare, health care and grocery stores, are unavailable or difficult to access.91 A lack of adequate public transport means that families are unable to access decent supermarkets and instead rely predominantly on expensive and poorly stocked local stores. In general, poor women and their children are more likely to be obese and suffer serious health issues and non-communicable diseases that hinder them for the rest of their lives.92

59. Female immigrants, who often suffer racial discrimination from employers and find it more difficult to get jobs, experience higher poverty rates and have much less access to social protection benefits than other women.93 Undocumented women live a kind of half-life, in which they experience exploitation, abuse and wage theft, and are refused access to utilities such as water, but are unable to seek assistance or protection for fear of deportation.94 While their undocumented status raises difficult legal and policy questions, their shadow existence as mothers of United States citizens and as domestic, sex or other workers undermines their ability to live a life in dignity. Even many permanent residents who have lived in the United States for less than five years are excluded from coverage under the Affordable Care Act95 and assistance such as the Supplemental Nutrition Assistance Program, the Temporary Assistance for Needy Families programme and housing benefits.96

60. Lack of Internet connectivity in rural impoverished communities negatively affects access to social protection benefits, other government services and even employment.97 In West Virginia, where an estimated 30 per cent of the population lack access to high speed broadband (compared to 10 per cent nationally) and 48 per cent of rural West Virginians lack such access (compared to 39 per cent of the rural population nationally), 98 the government has no serious plans to improve access.

Indigenous peoples

61. The Special Rapporteur heard testimonies from Chiefs and representatives of federally recognized and non-recognized tribes on widespread extreme poverty in their communities. Indigenous peoples, as a group, suffer disproportionately from multidimensional poverty and social exclusion. The 2016 poverty rate among American Indian and Alaska Native peoples was 26.2 per cent, the highest among all ethnic groups.99 Indigenous peoples also have the highest unemployment rate of any ethnic group: 12 per cent in 2016, compared to the national average of 5.8 per cent.100 One in four indigenous young people aged 16 to 24 are neither enrolled in school nor working.101

62. Disparities between indigenous and non-indigenous health status have long been recognized but not effectively addressed. American Indians and Alaska Natives face almost a 50 per cent higher death rate than do non-Hispanic White people, due to illnesses such as heart disease, cancer, chronic liver disease and diabetes.102 Poverty, unemployment, social exclusion and loss of cultural identity also have significant mental health ramifications and often lead to a higher prevalence of substance abuse, domestic violence and alarmingly high suicide rates in indigenous communities, particularly among young people. Suicide is the second leading cause of death among American Indians and Alaska Natives aged between 10 and 34

63. In entering a “trust relationship” with the recognized tribes, the Government assumed duties to provide for economic and social programmes to ensure the welfare of the relevant indigenous groups.104 But their very high poverty rates attest to the Government’s failure in this respect. Chronic underfunding of the relevant federal government departments is a significant part of the problem.105 The situation has also been compounded by paternalistic attitudes, 106 which run directly counter to the approach reflected in international human rights law and standards, particularly the United Nations Declaration on the Rights of Indigenous Peoples, which the Government endorsed in 2010.

64. The situation of non-federally recognized tribes is even more desperate, for they are not eligible to benefit from federally funded programmes. While 567 tribes are federally recognized, some 400 are not.107 The latter exist in a context in which their way of life is not legally sanctioned, they are disempowered and their culture is threatened. Failure to collect disaggregated data for those tribes also hinders the development of evidence-based policies to address their situation.

E. Confused and counterproductive drug policies

65. The opioid crisis has devastated many communities, and the addiction to pain-control opioids often leads to heroin, methamphetamine and other substance abuse. Instead of responding with increased funding and improved access to vital care and support, the federal Government and many state governments have instead mounted concerted campaigns to reduce and restrict access to health care by the poorer members of the population.

66. In terms of welfare, the main responses have been punitive. States increasingly seek to impose drug tests on recipients of welfare benefits, with programmes that lead to expulsion from the programme for repeat offenders. Others have introduced severe punishments for pregnant women who abuse drugs. Medical professionals recognize that such policies are counterproductive, highly intrusive and misplaced. The urge to punish rather than assist the poor often also has racial undertones, as in the contrast between the huge sentences handed down to those using drugs such as crack cocaine (predominantly Black) and those using opioids (overwhelmingly White).

F. Environmental pollution

67. Poor rural communities throughout the United States are often located close to polluting industries that pose an imminent and persistent threat to their human right to health.109 At the same time, poor communities benefit very little from these industries, which they effectively subsidize because of the low tax rates offered by local governments to the relevant corporations.

68. Poor communities suffer especially from the effects of exposure to coal ash, which is the toxic remains of coal burned in power plants. It contains chemicals that cause cancer, developmental disorders and reproductive problems,110 and is reportedly dumped in about 1,400 sites around the United States — 70 per cent of which are situated in low-income communities.111 In Puerto Rico, the Special Rapporteur visited Guayama, where poor communities live close to a plant owned by Applied Energy Systems (AES) that produces coal ash. Community members noted severe negative impacts on their health and economic activities; neither federal nor local authorities had taken action. In March 2018 the Environmental Protection Agency proposed a new rule that would significantly undermine existing inadequate protections against coal ash disposal.

69. In Alabama and West Virginia, a high proportion of the population is not served by public sewerage and water supply services. Contrary to the assumption in most developed countries that such services should be extended by the government systematically and eventually comprehensively to all areas, neither state was able to provide figures as to the magnitude of the challenge or details of any planned government response.

VII. Conclusions and recommendations

70. The following analysis focuses primarily on the federal level. It is nonetheless ironic that those who fight hardest to uphold state rights also fight hard to deny city and county rights. If the rhetoric about encouraging laboratories of innovation is to be meaningful, the freedom to innovate cannot be restricted to state politicians alone.

1. Decriminalize being poor

71. Punishing and imprisoning the poor is the distinctively American response to poverty in the twenty-first century. Workers who cannot pay their debts, those who cannot afford private probation services, minorities targeted for traffic infractions, the homeless, the mentally ill, fathers who cannot pay child support and many others are all locked up. Mass incarceration is used to make social problems temporarily invisible and to create the mirage of something having been done.

72. It is difficult to imagine a more self-defeating strategy. Federal, state, county and city governments incur vast costs in running jails and prisons. Sometimes these costs are “recovered” from the prisoners, thus fuelling the latter’s cycle of poverty and desperation. The criminal records attached to the poor through imprisonment make it even harder for them to find jobs, housing, stability and self-sufficiency. Families are destroyed, children are left parentless and the burden on governments mounts. But because little is done to address the underlying causes of the original problem, it continues to fester. Even when imprisonment is not the preferred option, the standard response to those facing economic hardship is to adopt policies explicitly designed to make access to health care, sick leave and welfare and child benefits more difficult to access and the receipt of benefits more stigmatizing.

73. A cheaper and more humane option is to provide proper social protection and facilitate the return to the workforce of those who are able. In the United States, it is poverty that needs to be arrested, not the poor simply for being poor.

2. Acknowledge the plight of the middle class

74. Only 36 per cent of Republican voters consider that the federal Government should do more to help poor people, and 33 per cent believe that it already does too much.112 The paradox is that the proposed slashing of social protection benefits will affect the middle classes every bit as much as the poor. Almost a quarter of full-time workers, and three quarters of part-time workers, receive no paid sick leave. Absence from work due to illness thus poses a risk of economic disaster. About 44 per cent of adults either could not cover an emergency expense costing $400 or would need to sell something or borrow money to do it. Over a quarter of all adults are classified as having no access or inadequate access to banking facilities.113 The impacts of automation, artificial intelligence and the increasing fluidity of work arrangements mean that employer-provided social protection will likely disappear for the middle classes in the years ahead. If this coincides with dramatic cutbacks in government benefits, the middle classes will suffer an ever more precarious economic existence, with major negative implications for the economy as a whole, for levels of popular discontent and for political stability.

3. Acknowledge the damaging consequences of extreme inequality

75. The United States already leads the developed world in income and wealth inequality, and it is now moving full steam ahead to make itself even more unequal. But this is a race that no one else would want to win, since almost all other nations, and all the major international institutions, such as OECD, the World Bank and IMF, have recognized that extreme inequalities are economically inefficient and socially damaging. The trajectory of the United States since 1980 is shocking. In both Europe and the United States, the richest 1 per cent earned around 10 per cent of national income in 1980. By 2017 that had risen slightly in Europe to 12 per cent, but massively in the United States, to 20 per cent. Since 1980 annual income earnings for the top 1 per cent in the United States have risen 205 per cent, while for the top 0.001 per cent the figure is 636 per cent. By comparison, the average annual wage of the bottom 50 per cent has stagnated since 1980.

76. The problem is that “inequality” lacks salience with the general public, who have long been encouraged to admire the conspicuous, and often obscene, consumption of billionaires and celebrities. What extreme inequality actually signifies is the transfer of economic and political power to a handful of elites who inevitably use it to further their own self-interest, as demonstrated by the situation in various countries around the world. While the poor suffer, so too do the middle class, and so does the economy as a whole. High inequality undermines sustained economic growth. It manifests itself in poor education levels, inadequate health care and the absence of social protection for the middle class and the poor, which in turn limits their economic opportunities and inhibits overall growth.

77. Extreme inequality often leads to the capture of the powers of the State by a small group of economic elites. The combined wealth of the United States Cabinet is around $4.3 billion. As noted by Forbes: “America’s first billionaire president has remained devoted to the goal of placing his wealthy friends in his Cabinet, a top campaign promise.”115 And many regulatory agencies are now staffed by “political appointees with deep industry ties and potential conflicts”.116 Extreme inequality thus poses a threat not just to economic efficiency but to the well-being of American democracy.

4. Recognize a right to health care

78. Health care is, in fact, a human right. The civil and political rights of the middle class and the poor are fundamentally undermined if they are unable to function effectively, which includes working, because of a lack of the access to health care that every human being needs. The Affordable Care Act was a good start, although it was limited and flawed from the outset. Undermining it by stealth is not just inhumane and a violation of human rights, but an economically and socially destructive policy aimed at the poor and the middle class.

5. Get real about taxes

79. At the state level, the demonizing of taxation means that legislatures effectively refuse to levy taxes even when there is a desperate need. Instead they impose fees and fines through the back door, some of which fund the justice system and others of which go to fund the pet projects of legislators. This sleight-of-hand technique is a winner, in the sense that the politically powerful rich get to pay low taxes, while the politically marginalized poor bear the burden but can do nothing about it. There is a real need for the realization to sink in among the majority of the American population that taxes are not only in their interest, but also perfectly reconcilable with a growth agenda. A much-cited IMF paper concluded that redistribution could be good for growth, stating: “The combined direct and indirect effects of redistribution — including the growth effects of the resulting lower inequality — are on average pro-growth.”117

Part 1

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