The GOP’s Hidden Attack on Reproductive Rights

Ilyse Hogue on the attack on reproductive rights hidden in the GOP’s tax bill, plus how driver’s licenses have become the new debtors’ prisons. Subscribe to Off-Kilter on iTunes.

The GOP tax plan wouldn’t just give massive tax cuts to the wealthy and corporations while raising taxes on millions of middle-class families. It’s also the GOP’s latest attack on reproductive rights. Ilyse Hogue, President of Naral Pro-Choice America, joins the show to unpack a provision buried in the bill that would give fetuses legal status as people. And later, Rebecca talks with Angela Ciolfi of the Legal Aid Justice Center and Ariel Levinson-Waldman of Tzedek DC about how driver’s license suspensions have kicked off the latest wave of debtor’s prisons.

This week’s guests:

• Ilyse Hogue, President of Naral Pro-Choice America
• Angela Ciolfi, Director of Litigation and Advocacy at the Legal Aid Justice Center
• Ariel Levinson-Waldman, Founding President and Director-Counsel at TZEDEK DC

For more on this week’s topics:

• Read Ilyse Hogue’s op-ed about the GOP’s attack on reproductive rights and check out NARAL’s explainer on the personhood provision in the GOP tax plan
• Join NARAL in telling the Senate to drop “personhood” from the GOP tax bill
• Read Driven by Dollars, the Legal Aid Justice Center’s 50-state report on driver’s license suspensions
• Learn more about the Legal Aid Justice Center and TZEDEK DC

This program aired on November 24th, 2017

Transcript of show:

REBECCA VALLAS (HOST): Welcome to Off Kilter, powered by the Center for American Progress Action Fund. I’m your host, Rebecca Vallas. The Republican tax plan wouldn’t just give massive tax cuts to the wealthy and corporations while raising taxes on millions of middle class families. It’s also the GOP’s latest attack on reproductive rights. I talk with Ilyse Hogue, president of NARAL pro-choice America about a provision buried in the bill that would give fetuses legal status as people. And next, across the country millions of people have lost their drivers licenses simply because they are poor. That’s because 43 states and the District of Columbia used driver’s license suspension as a lever to coerce payment of government debts, even if people can’t afford to pay. I talk with two lawyers about the tidal wave of lawsuits challenging these cruel and counterproductive policies

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You’re listening to Off Kilter, I’m Rebecca Vallas. Buried in a tax plan that is all about tax cuts for millionaires is also a provision that could give fetuses legal status as people. To unpack this provision and it’s implications as part of the GOP’s larger war on women’s bodies is Ilyse Hogue, the president of NARAL Pro-Choice America. Ilyse, thanks so much for joining the show.

ILYSE HOGUE: Thanks for having me on.

VALLAS: So first just help us understand what is this provision that’s buried in there? It’s sort of surprising language to find in a tax bill, what would it do? How does it read and why does it matter?

HOGUE: Well the interesting thing is it substantively do nothing, right. It is in fact the Brooking Institution called it “not an economic provision but an existential provision.” And I think that really about captures what they’re trying to do here. And a very, very cynical ploy wrapped in the cloak of something Americans are quite honestly desperate for which is more affordable college for their kids, they’ve asserted language that would actually grant legal status to an unborn child, a fetus in the womb, under the college savings plan. Now why does this matter? Well economically it does nothing, it’s actually in fact redundant. I can already open a college savings plan in my name and for any future children I might have and then turn it over to them once they are born. So economically this does absolutely nothing. But what it does is actually pay back and continue to creep into women’s lives in a very sinister way. It pays back a base that is really hungry for legislative wins and that’s the extreme anti-choice component of the GOP base who is trying to assert what is commonly known as personhood into the tax code when they have not been able to win that legislatively anywhere in the country. They’ve not been able to win it at the ballot box anywhere in the country and so you’ve got a lot of different things going on here. One, just sort of this willingness to actually dupe, bait and switch if you will, people who really do want to see something that helps them pay for college and make them an unwitting part of their plan. And two, inserting a provision that is so radical that the American people have multiple times rejected it, into something that has absolutely nothing to do with it. And we keep saying you know the debate about when live begins belongs to the scientists or if you go to church please have it there. The last place we want to be legislating morality is in the GOP tax code.

VALLAS: Now a lot of folks watching this fight, many actually members of congress themselves have called out this process similar to the health care fight for being sort of a smoke filled back room uninclusive process. Basically, the Republicans again trying to ram though a major piece of legislation that impacts huge, huge components of country’s economy without any sunlight. This particular provision feels like exhibit A of what that involves and of the implications given that so many members of congress who are actually voting on the bill don’t even really know what’s buried in it. I would love to hear you talk a little bit more about how you feel this fits with the Trump administration’s approach more broadly to trying to establish personhood for fetuses, not through any process that actually takes into account what the American people want.

HOGUE: Yeah, I’m happy to do that. I think this is part and parcel of the Trump administration and their willingness to sort of assert a long-standing radical wish list into policy. However they can, be it through executive order or agency rules or true legislation like this. However, I would not actually let the Senate majority leadership off the hook on this one. When you look at the way the Senate part of the tax bill has unfolded you already have Ron Johnson from Wisconsin saying he can’t vote for it. Part of it is based on this exclusion from being part of the process from a lack of transparency. Ron Johnson, for your listeners who don’t know him, is hardly liberal, he’s a GOP, he’s a very conservative GOP senator who is saying even for him the process around this tax plan has been way too murky, way too opaque and actually designed to dupe the American people. So I would say that this sort of, this really creepy and sinister provision that we are talking about specifically is part of parcel of this unholy alliance that’s been formed between Mitch McConnell and the Trump administration who I think share a real ‘by any means necessary’ mentality. That the process and the sunlight and the transparency of how these broad sweeping pieces of legislation get made. It’s just not something the American people deserve and so many cases it’s not even something their fellow senators deserve, right? So that’s where I would start and much like the repeal of health care, if the tax plan goes down I think of that rests on some of the more sinister provisions like making senators vote on personhood which has nothing do to with taxes and something that is so deeply unpopular and they have actually spent some time running away from it and I’ll get into that in a minute. But it’s also going to go down as senators calling out the fact that this is the [INAUDIBLE] from a democratic process and what democracy should stand for.

Now you know I say personhood is unpopular, it really is. When we look at, this has been a long, long-standing holy grail for the radical anti-choice movement. They want to take something that is a spiritual concept for many faiths and say life begins at conception and assert it however they can. So they’re doing it in the tax bill but as you alluded to this is not the first time we’re seeing this coming out from the Trump administration. And in fact reporters who are able peruse the Health and Human Services strategic plan under the new Trump administration and personhood language was in there, saying you know how do we use the agency, how do we establish this very ideological idea into every sort of nook and cranny of government that we can. So that we are duping the American people but it’s still there and once it’s there you can’t, it’s much harder to get rid of it. Why are they going to such great lengths and why are they doing it in this sneaky way that they’re doing it? They’re going to such great lengths because for eons, since 1973 the singular goal of the radical anti-choice movement has been to outlaw abortion in this country. And putting personhood language everywhere and lays a legal framework to do just that. To overturn Roe, which is sort of the end of the long journey for them. It gives them legal precedent by which to, or it gives them a legal framework by which to challenge the precedents.

VALLAS: And I want to stop you there because I want to dig into that in particular. You mentioned that the provision that’s buried in the tax bill itself is economically redundant and useless, those are your words from an op-ed that you wrote about it and I think really put the finest point on it that I’ve seen. So if the provision itself is useless from an economic standpoint, how does this actually pave a path to overturning Roe, help us understand that piece.

HOGUE: Yeah and it’s useless from an economic perspective for all the reasons we described earlier so what it does is acknowledge that prior to birth an entity exists that has rights and protections, right and so this is why it’s called personhood. The Supreme Court in the law has said that rights basically begin at birth although there’s caveats around abortion that came through Roe, and this would reverse longstanding decades of scientific wisdom, legal framework and legislation by asserting actually no, that prior to giving birth your unborn child or your fetus has rights and therefore once you have established that independent sweep of rights, then you can litigate all sorts of other things, including outlawing abortion. So it really, I don’t know how, it’s not possible to overstate how monumental this is for the anti-choice movement. To have this kind of language places which then allows them to go through the court system and challenge abortion at every level.

And the reason that I think they’re being so sneaky about is because this been extraordinarily unpopular. Extraordinarily unpopular, they’ve put it on the ballot in deep red states where they thought it would be a slam dunk in Mississippi and North Dakota and it loses every time when it’s in front of the voters. The House has certainly had long-standing, had a bill around personhood that co-sponsors and Cory Gardner, the senator from Colorado was in the House and had signed onto that personhood bill in the House. When he ended up running statewide for senator he spent a lot of time backpedaling on his support for the personhood bill. In fact, he went so far as at point during the campaign in 2014 to say to his constituents in Colorado I didn’t even know what I was signing onto. Now of course he did. Of course he knew what he was signing onto and in fact the organization that sponsored the bill came out and very specifically said we have a huge education session with Cory Gardner so he knew what he was signing onto but that’s an acknowledgment that this is really something that people don’t want. And it’s something that people don’t want for a whole long of reasons. Once personhood gets established it has wide ranging implications and you know let’s just start with abortion. The majority of Americans actually support safe and legal abortion. So the idea that you’re laying the groundwork to outlaw it entirely is deeply unpopular. But personhood goes well beyond that. It has legal ramifications for everything. From in vitro fertilization which is increasingly a technology that families use to have children they very much want. And it goes to end of life provisions and death with dignity so it is something that could entirely transform our culture from inception to death. And they’re trying to assert a moral framework upon the American people who have time and time again said this is not your job. We don’t want you doing this and in fact when you try and do it we’re just going to straight up reject it.

VALLAS: And complete analogous to the way that we’ve seen the Republican party trying to advance their ACA repeal agenda which goes against what the American people want and also has deep implications for women’s access to reproductive care.

HOGUE: Absolutely. I mean I’m actually someone who’s loath to use terminology like the war on women that’s been around for a long time because I think this is a new generation and we need new memes and new slogans. But it’s really, really hard when you look at what they’re doing and it’s like yeah it kind of is you know? It kind of is a war on women because if you look at the combination of what they’re doing with this tax bill plus all of their attempts at Obamacare repeal, you know basically plus going to the administration and looking at the contraception mandate repeal right? They’re essentially basically saying we’re not going to help you not actually get pregnant when you don’t want to. We’re going to eliminate your options when you do get pregnant unintendedly or if God forbid something goes wrong with your pregnancy. And you know what? If you do get pregnant you’re kind of on your own because we’re trying to limit pre-natal care and then whoa, once that kid is in the world we don’t have child care, you’re not going to have health care for your kid so you’re kind of damned if you do and damned if you don’t if you’re a woman and that’s ultimately the goal is to reassert a particular kind of family order on the American people that is basically a faith based biblical one that does not belong in legislation.

VALLAS: Now meanwhile in addition to the continued attacks on the Affordable Care Act which are not done, they are not over, I feel the need to say that bold, underscore, italicized. Every time people say oh but we’ve moved onto the tax fight because of course the tax fight has become the health care fight with the introduction of a repeal of the individual mandate in it altogether with, of course, the Trump administration’s continued efforts to sabotage the law. But in addition to all of that and in addition to this, there’s of course the continued Republican war on reproductive rights through other pieces of legislation as well that I’m thinking in particular about the 20 week and 6 week abortion ban bills. Are those bills that you expect to actually move and become law or is this all part of a strategy of trying to find ways to do things that don’t actually see the light of day and allow the American people to understand what Republicans are trying to do?

HOGUE: I think that this administration combined with the GOP congress which has been getting more and more radical over the years as you know is perfecting the art of moving the goal posts and creating through sheer force of will, cultural norms that otherwise would have been unthinkable years ago. So you know basically their idea is the more we say it the more true it is. And I think that they say things, with the way they legislate. I can say say things with executive orders, I can say say things through strategic memos and we’re just you know, the risk is they say it so many times and they say it about so many different things that we get immune to it. And I think that’s exactly what they’re doing with a very, very unpopular agenda that they are pursuing, some would say almost obsessively right, on reproductive rights. If we say it enough, people will start to tune us out and then we can do what we want without anyone paying attention and they’re banking on the fact that there a limit to that outrage in the country. And that they are going to outlast what is popular will around women having access to reproductive healthcare but also you know it’s really important to understand that we don’t view this simply as an attack on reproductive healthcare.

We view this as an attack on women’s autonomy and self determination. And you know again, I say this because it’s really important it’s ideologically motivated. I think I’m not telling your listeners anything that they don’t already know to say that this GOP party has become something that it wasn’t decades ago. Which is driven by a pretty radical view of what this country should look like and I think Donald Trump as president is the highest manifestation of that radical view. Having Donald Trump and Mike Pence in the Whtie House is basically asserting that you know, a very dogged radical minority in this country is really saying hey, this kind of idea that men rule and that this nuclear family with one dad and one mom and lots of kids is the American way. And that they’re trying to legislate that morality onto the rest of us. And I think people won’t have it. I think we live in a country that values autonomy, values equality, values participation from everyone. Actually really does think diversity is a strength of our country. But I think that they are not going to go away quietly. And they’re going to assert their will in everyway possible. And I think that that’s what we’re seeing. That there’s an obsession there with what they’re doing as though they know this is sort of the last dying gasp of a particular way of thinking and they’re going to get everything they can out of it.

VALLAS: In the last couple of minutes that I have with you we’ve talked a lot about Republican plans along these lines, we’ve talked about the tax front. We’ve talked about HHS strategic plan as well as the rest of the so-called war on women which I agree, I feels like [a] histrionic phrase but it’s actually true so we kind of have to say it. But I also want to bring up because I would feel remiss if I didn’t that most of the issue of reproductive rights has been not without it’s complications for the Democratic party and for progressives. We’ve seen some level of disagreement within the past several months along whether there should be a so-called litmus test for candidates running on Democratic sides of the ballot. Curious your thoughts on how we get to a productive place on that conversation and whether we should be using the concept of a litmus test or whether there’s a better way.

HOGUE: Yeah I mean, I think, first of all I guess I would say I think we are in a better place. I think that the party did a lot of soul searching and had a lot of really tough conversations over the last year since the election and I really do think we’re in a better place. And I just stand firmly on the side of the party has values and principles. And they’ve been longstanding values and principles. And some of those principles are really about women’s equality and women’s equality is not possible unless we stand for something that actually has been in our Democratic party platform for a really long time which is the recognition that the fundamental freedom of everybody, regardless of gender, to have control over what happens with their own body. And you know some of why I think we’re in a better place is because I think people are starting to see that we have to stand for something and what we have to stand for are the things we say we stand for and when we lean into our values we not only win because people understand that we stand for something but that we’re different from the other guys, right?

And that’s the, you know I always say look, if voters wanted an anti-choice person leading them they’ve always got a better choice on the ballot. I mean they just always do. So you know, I think we got caught up on the wrong question. If you look at all the polling and all the data from House Majority PAC polling of white working class voters to Priorities polling on drop off voters that we need to win in 2018, when it comes very narrowly to the question of standing up for legal access to abortion, we win. Our positions win. I think we have work to do to make sure that we’re explaining our position in a values based way that most voters can appreciate what we’re saying which is basically like we don’t all have to agree on what we would do in any given situation, in fact we’ll never all agree on what we will do in any given situation. What we do agree on is that your family’s business is your family’s business and you know I think when we have that conversation we win. And look, at the end of the day, in every cycle we end up having candidates who fall short on almost every issue that we stand for, every issue in the top form. From gun safety to climate change, not every candidate is perfect on every issue that the Democratic party stands for. But what I think we need to stop doing is singling out one issue as though it’s up for grabs that telegraphs a message that actually undercuts the power of the party and it’s candidates who are fighting really hard for equality and justice.

VALLAS: To follow up a big piece of that conversation has really centered around whether you can separate issues like abortion and other so called “social issues”, I put that in big air quotes from so called economic issues. Is that part of what you feel is the wrong question to be asking or is that something that we need to be struggling with as we try to learn the right lessons from the 2016 election?

HOGUE: Well I mean I think what you’re talking about is what I think is such a red herring and actually a trap laid for us by the other side which is the self division between identity politics and economics, economic security. And to me the construct is so ridiculous if you’re the party, as Democrats are, of diversity. Who you are, the way you present to the world, ethnically, from a class perspective, from a gender perspective has everything to do with your economic prospects in this country. And reproductive rights and access, that ability to decide when and how and with who you have a family at the end of the day effects everything from a woman’s opportunity to finish education, get a job, hold a job, ascend in management because we have such a dearth of childcare options. Being in control of that is a proxy for your entire destiny in the world. And if we as a party are going to actually be the party that looks like the United States, right, in all it’s beauty, in all it’s glory, then we have to actually understand that identity is core to economic security.

And then we have to actually recognize and start to ask them about their own identity politics, because the Trump coalition is all about identity politics. You have got some axis of evil between the two sides, anti-choice folks, the Richard Spencer white supremacists of the world and the Mike Cernovich men’s rights advocates. This is Trump’s base of support, right, it’s basically saying white men are threatened in this country and Donald Trump is going to save us. So they’re really the ones who are about identity politics and we should start holding a mirror up to them and asking them very hard questions.

VALLAS: Ilyse Hogue is the president of NARAL Pro-Choice America. Ilyse, thank you so much for joining Off Kilter and I appreciate so much your work to lift up what’s buried in the tax bill and it’s far reaching implications because there is so much in there that is so terrible that it’s really hard for folks to wrap their heads around all of it. So thank you again and I hope to have you on the show sometime soon.

HOGUE: Thank you, I appreciate it.

VALLAS: Don’t go away, more Off Kilter after the break, I’m Rebecca Vallas.

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You’re listening to Off Kilter, I’m Rebecca Vallas. Across the country millions of people have lost their drivers licenses simply because they are poor. That’s because 43 states and the District of Columbia used drivers license suspension as a lever to coerce payment of government debts, including fines and fees like the ones Ferguson opened the nation’s eyes to back in 2015. In the two years since, we’ve seen a tidal wave of lawsuits challenging these cruel and counterproductive policies, including by the Legal Aid Justice Center in Virginia. I’m so pleased to be joined by the lead litigator in that case and one of the authors of a new report called “Driven by Dollars” which looks at how this issues has spread nationwide. Angela Ciofi is a good friend and the litigation director there at the Legal Aid Justice Center in Charlottesville. We’re also joined by Ariel Levinson-Waldman, he’s the founder and director of TZEDEK DC, he has been a leader in combating drivers license suspensions on the DC front as well. Thank you so much to both of you for joining for this conversation.

ANGELA CIOFI: Thanks for having us on.

ARIEL LEVINSON-WALDMAN: Thanks, Rebecca.

VALLAS: Angela, I want to start with you to take us to school a little bit. Because this report that you guys released in the last few weeks, it really, it does some helpful 101. So why are people losing their drivers licenses for owing fines and fees and really for being too poor to pay fines and fees?

CIOFI: So there are a number of advocates in courts and others across the country that are concerned about drivers license suspension for non-driving reasons. And I think the first thing you have to say about the work that’s going on on drivers license is that it’s not just about driving. It’s about the right to basic human dignity and the right to survive and to take care of your family. So just to start with the basics in Virginia and in many other states, if you’re a day late or a dollar short on paying your court fines and fees and in Virginia it’s both traffic and criminal fines, your license is suspended. Not by any court or any judge but by two computers talking to each other. And then once you lose it it becomes extremely difficult to get it back. And so let me just give you a quick example. One of our clients lost her license because of, she could not afford to pay fines and costs related to a speeding ticket and bald tires. When she lost her license, she lost her job because she couldn’t drive to and from work. When she lost her job she lost her food stamps because she was considered able bodied and in Virginia, if you’re not working and you’re able bodied you lose your food stamps. And so she began literally selling her blood plasma in order to make ends meet. So this is a description of the devastating consequences of losing a drivers license and it’s what I mean when I say that it’s not just about driving. It’s about the basic right to survive.

VALLAS: Now, implied in the story you just told is the fact that this is a person who I think anyone listening right now and hearing the details of her story would say, doesn’t really sound like she’s able to pay, has the ability to pay. Those are the magic words often in court parlance, these fines and fees that she owes but yet her drivers license was suspended anyway. How does that happen and how is that legal?

CIOFI: Well, it happens because the process has become automated and that’s exactly why states like it. Unlike when you put someone in jail for failure to pay which is also something that happens frequently you don’t under many court practices or many state laws, there is no requirement for any kind of due process protections. No requirement, that notice that there has been a default and that your license is about to be suspended and that you have a right to a hearing to explain why there might be some excusable reasons why you failed to pay. And so the very reasons that states like it, that it’s automated is also the reason that makes it unconstitutional.

VALLAS: So Ariel, I want to bring you in a little bit. We’re going to talk about how this is playing out nationwide but it has sort of a different flavor everywhere that it occurs. You’ve been seeing this on the D.C. front, how is this issue playing out in DC?

LEVINSON-WALDMAN: Thank you and thanks for bringing this conversation into the studio. The way that this is playing out in DC is that thousands of District of Columbia residents have had their license suspended for a variety of reasons. And one of those reasons and the one that we are really working to change and end this policy is as Angela said, is the non-payment of debt. In the District of Columbia, our government spends or refuses to re-register of de-registers the license, all of those things in three basic categories. The first is for folks that haven’t paid a ticket or haven’t paid a cascading late fee on that ticket and in the district, initial tickets are often $100, $200 and the late fees then double that amount.

Typical members of our low income client community, their families cannot absorb a surprise $200 bill and many folks make the choice as between groceries or basic life needs and paying off the ticket. They go with the basic life needs. And now they find themselves cut off from the legal ability to drive. We also see this in the child support context. Most of our child support defendants are non-custodial parents, overwhelmingly men and men of color. And for defendants in those cases who haven’t been able to pay in full we see the suspension of licenses and that’s also very concerning. And last we see that some folks have court cases filed against them by insurance companies and when the insurance companies get a judgment, what our current law allows the insurance company to do is to in effect, weaponize the courts. Take that judgment, get it from the court and have it registered with the mayor in the DMV and this all happens through automatic process. Once the insurance companies fills out the paper work and then the license can be suspended so the court process is used to coerce the person by taking away or threatening to take away that key ability to drive.

It plays out in a very human way. One of the things that we do at TZEDEK DC along with our free legal work and our policy advocacy is that we have a community financial literacy program. And for example in our most recent financial literacy class which we co-teach with the United Planning organization, a terrific non-profit as well here in DC, we saw that one quarter, 25% of our students at the time in the class had their license suspended. And for all of the students who raised their hand at that time, the explanation was got a ticket, couldn’t pay the late fee and here I am; can’t drive, can’t get to that job interview, can’t get to work and all the havoc it creates. So this is something that is causing big problems for our community, in particular our low income residents and I want to talk over the course of the show about some of the stories that our client community has shared.

VALLAS: And I want to get into a lot of that as well but I want to just sort of call out something here that is implied in a lot of what you guys have been describing and in the client stories that you’re sharing or the human consequences kind of pieces that you’re sharing. But just to back up for a second to be very clear about what we’re talking about here, when I share with friends or folks I know the issue of drivers license suspensions, I’ll sometimes bring it up as one of the various barriers that people who have come into contact with law enforcement can then end up facing. An issue that folks know I work on and am very passionate about. And people will say, “yeah, yeah, yeah, I had my drivers license suspended when I was in high school or in college, and it was a DUI.” And that’s what everybody assumes is oh it must be some driving related infraction and that’s why people are getting their licenses suspended but what you guys are talking about is heavily people who don’t have offenses or even debts that are at all related to driving and it isn’t at all about keeping people off the roads if they aren’t safe drivers.

LEVINSON-WALDMAN: That’s such an important point. The debt related suspensions have nothing to do with public safety. They do not advance any public safety purpose. The only apparent purpose is to get more money into the government coffer. And it is for this reason that for example we had the first court in the country, a recent federal decision in Tennessee, describe the state rule there as “irrational”. There is no legitimate connection between a debt driven suspensions and any positive public safety purpose. We’re not here to suggest that if someone commits a reckless homicide or drives DUI that there shouldn’t be consequences for the license. That’s not at all what we’re saying and I do think that sometimes gets lost in the public rhetoric like you say. What we’re here to say is we shouldn’t respond to people not having enough money to pay a debt by suspending that license.

VALLAS: And Angela your report really looks at this head on and says is it a good idea to be taking away drivers licenses from people who cannot afford to pay debts that they are believed to owe? And this gets very much at Ariel’s sort of the second point he just made. There’s maybe an assumption that people have, hey if people owe money to the government I guess we got to find ways to pay it if they’re being deadbeats. Putting all of that in huge scare quotes right, that’s the devil’s advocate view. But is it even an effective lever to get people to pay or is it trying to get blood from a stone?

CIOFI: Well one of the things we talk about in our report is that suspensions are unfair, they’re harsh and they’re counterproductive. And they’re unfair because you are essentially putting low-income people who can’t afford to pay in a state of perpetual punishment. They, whereas wealthy people can just write a check and atone for the mistakes that they’ve made and the criminal or traffic citations that they’ve gotten. But low-income people can never atone until they pay the money and when they don’t have the money to pay they are put in this perpetual state of punishment where they are subjected to a never ending cycle of fines and fees, license suspension, being pulled over for driving while suspended and additional fines and fees. And I’d like to come back to the driving while suspended issue in a few moments but it has, it’s also harsh because it has devastating impacts on low-income people and their families. It’s not just the people themselves who have fines and fees that they’re not able to pay but being unable to drive has huge impacts on the family’s ability to bring in income, to get to medical appointments, to get to the grocery store and things like that.

In Virginia, like in many states, it is of course, it is illegal to drive while suspended. And in Virginia it carries up to $2,500 in additional fines and up to a year of jail time. And once you catch your third driving while suspended conviction it’s a mandatory minimum ten days in jail. So when one of our local jail superintendents looked at his jail population he found that driving while suspended convictions were one of the top reasons that was landing people in jail. And so that’s why I call the drivers license suspension issue Virginia’s form of debtors prison because it, in two ways. It can quite literally keep you confined to your home and when you do chose to drive it can result and often does result in incarceration for driving while suspended.

VALLAS: And you say choose to drive but for many people it isn’t a choice at all if we’re talking about getting to work or taking their child to the doctor.

CIOFI: Exactly, and when faced with the risk of being pulled over versus the certainty of losing your job, most people chose to drive. And in fact a study estimates that 75% of people do chose to drive. And that’s why we see so many high numbers of people who are incarcerated simply for driving, trying to drive to work.

VALLAS: Now Ariel, Angela described a situation where people can be facing a mandatory minimum of ten days in jail. A lot of people listening might be saying ten days, please we’re talking about criminal justice reform right now and mandatory minimums that can carry ten years or longer. What is ten days, that’s not so bad. Is that what you are seeing on the ground that maybe ten days isn’t so bad or is it actually huge problem in people’s lives?

LEVINSON-WALDMAN: It is a huge problem in people’s lives.

VALLAS: I realize I asked that question in a very leading way because I know the answer but I want to hear you describe it in a –

LEVINSON-WALDMAN: But I think that’s the right way to describe the problem. It is a huge problem in people’s lives. What we are doing for all the reasons that Angela illustrated through these policies is criminalizing poverty. And our honorary board member and our mutual mentor Peter Edelman has this very powerful book that gives all sorts of examples of this exact topic. I want to talk about what’s going on right here in the district on this point. Like Virginia, the District of Columbia has a criminal penalty for up to one year in prison for the first offense of driving without a license. We suspend thousands of licenses and in doing so we set up our citizens for having to deal with the criminal justice process, which wrecks enormous havoc. We have been told anecdotally, although we are still working to get the full statistics, we have been told anecdotally that as many as 2 out of every 3 arrests by the Metropolitan Police Department here in the District of Columbia includes a charge for driving without a license.

VALLAS: 2 out of 3.

LEVINSON-WALDMAN: 2 out of 3. And this is overwhelmingly because the way we’re getting to these suspensions is often through the nonpayment of debt, this is overwhelmingly our low income community members, overwhelmingly folks from communities of color, both in our African-American community and immigrant households and the impact of not being able to go to work, of potentially being removed from the household for even a day, let alone ten days, let alone a year. It is enormous, it is disruptive, it wrecks havoc on the record and it is both counter productive and I agree completely with that word as Angela used it. And deeply, deeply unfair because we’re saying in effect is you didn’t have the money so we set you up but you had to make that choice, the 3 out of 4 choice that Angela described. And folks have to get to work, they have to pick up from child care, they have to get groceries, they have to go to a basic appointment.

I want to share one story that a community member told the entire DC Council Transportation Committee just two weeks ago at a hearing that we participated in. she shared that her mother had been hospitalized and sent on an emergency basis to Johns Hopkins in Baltimore. And a few weeks before she had had her license suspended because she couldn’t come up with the money to pay the ticket and she described how the situation that this left her in standing in front of her car in tears trying to describe whether to commit what she knew was a criminal act and subject herself to the possibility of the criminal justice system, or go see her mom. She made the choice that many of us would make; she got in the car, took the risk and this is not a choice that we should be putting our citizens into, particularly given the impact on their financial stability. And I know Angela wants to jump in here.

CIOFI: Yeah, I love that story and I want to tell a story that I think also illustrates how ten days is a big deal. I spoke with a woman just the other day who has not had her license since 2011. And she lost her kids to foster care some years ago for unrelated reasons and the only way for her to get them back is to complete an out patient drug rehab program. And this drug rehab program is in an urban center, she lives two counties away in a rural place with no public transportation and so the only way for her to get to that program is to drive.

VALLAS: It’s the definition of a Catch-22.

CIOFI: Totally and so what does she do? She does what we would all do. She keeps driving. She keeps getting pulled over for driving to and from the treatment program and she keeps going to jail for driving while suspended. And everytime she lands in jail she has to start the drug program over because of the attendance policy. So she’s now racked up thousands of dollars in fines and costs related to driving while suspended, other minor traffic stuff and spent 46 days in jail for driving while suspended and she’s no closer today to getting her kids back. Now multiply that story times a million people because that’s how many people in Virginia are suspended for driving, I’m sorry, are suspended for failure to pay fines and costs. It’s 1 in 6 Virginia drivers.

VALLAS: And on the flip side, not only is she not any closer to actually completing the terms of her sentence that is now never ending and she’s trapped in a loop but the state of Virginia, or commonwealth, sorry, sorry Virginia you’re a commonwealth. The commonwealth of Virginia is no closer to getting the money that it believes it [is] owe[d] for the fines and costs that now are racking up in a vicious cycle and they’re actually spending money to incarcerate her because she can’t pay.

CIOFI: Not to mention the huge consequences to her family and her kids, we know kids do better in families and she desperate wants them back and has done everything that’s required of her except be able to drive legally to and from the program.

VALLAS: So I want to talk a little bit about some of the work that you guys are doing and that others around the country are doing to change these policies. I mentioned up at the time that Angela, your organization the Legal Aid Justice Center, full disclosure it’s the first legal aid program I ever worked at so I guess we get to thank them and you and the former executive director there, the famous Alex Gulotta for making me into who I am at some level.

CIOFI: We’re proud to claim you.

VALLAS: Well I’ll take being claimed, I’ll take being claimed, as opposed to being spurned or thrown out, thank you. But your organization has brought a lawsuit that’s gotten some level of attention against Virginia’s policy. What’s the basis for the lawsuit and do you think it’s going to be successful?

CIOFI: Of course it’s going to be successful! [LAUGHTER] As will the other five lawsuits that have been filed in states across the country. So going back as early as the ’70s the Supreme Court has basically said two things about this, about court debt and debt collection by courts. And those two things are first of all you can’t punish people for their poverty. It’s fundamentally unfair and it’s not consistent with the principles of equal access to justice. And then second you got to have some kind of process to distinguish between people who disobey court orders because they’re intentionally refusing to comply and people who just can’t afford to comply. And so when you look at the suspension systems, we call it the license for payment systems across the country you see not only do 43 states plus DC and then another three states who won’t let you renew your license if you haven’t paid your costs and fines, not only do you see this is ubiquitous but you see very few states, really only four that have any kind of procedural protections and safeguards in place to try to prevent people from being suspended simply due to their poverty.

And so I think when you look at those systems and especially the ones that are automatic and mandatory and no human hand intervenes to exercise discretion or to value the way the circumstances behind each case, it really flouts the fundamental notions of basic due process that we have all come to cherish in our constitutional society.

VALLAS: I would love to hear a little bit about some of the other lawsuits as well. You’ve eluded to there being other states. I think the other state that perhaps has gotten the most attention is California and California itself is actually responsible for a huge share of the millions of Americans who are currently suspended [merely] for being poor. Is the basis for the California suit similar? Are there differences that are worth highlighting?

CIOFI: Most of, all of the lawsuits are fairly similar. So there are suits in California, Tennessee, Michigan and Montana as well as Virginia. And they all basically, they have various different idiosyncrasies but they basic raise these same notions of due process and equal protection and fundamentally fairness in accessing the courts. Now in California, there is a huge coalition of advocates that have really launched sort of a frontal attack on drivers license suspensions from all sides. Not just in the courts but in the public domain and in communications work and in the legislature and everywhere. They’ve really tried to get a toe hold everywhere they can find and they’ve been very successful. And earlier this year Jerry Brown signed into law a repeal of their automatic suspension statute and that’s brought tremendous relief to a number of people. We’re hoping that other states will follow suit and in fact we’re seeing progress in other places legislatively. We saw some huge criminal justice reforms coming out of Louisiana, including changes to their payment plan policies for payment of court debt where, and maybe we can talk about some of those. But in making sure that there are, they’re one of the four states that actually does consider ability to pay and you have to have a finding by a court that there’s an intentional, willful non-compliance with the court order before any penalties such as drivers license suspension.

In Colorado they have made driving while suspended if the underlying suspension is failure to pay a non-criminal offense. So now it no longer carries jail time when before it carried jail time.

VALLAS: Which is a big deal.

CIOFI: That’s right. We saw, it’s a huge deal although it’s not quite there yet because you’re still going to have those escalating costs and fines coming with new convictions for driving while suspended. We’ve seen some other advancements in Missouri and Washington where they’ve rolled back some of the suspensions for fines and costs not related to traffic. So I don’t know if we’ve really hit this hard but in 14 states they suspend for failure to pay fines and fees related to convictions that have nothing whatsoever to do with motor vehicles. So we have seen some progress and we’ve seen some progress in the courts as well. Ariel was just talking about the fabulous opinion coming out of Tennessee federal court restoring the drivers licenses pursuant to a temporary restraining order for a couple of the plaintiffs there because of the just complete on it’s face irrationality in the scheme.

VALLAS: Do we believe in the last couple of minutes that we have, do we believe that the Tennessee opinion is likely to have, or has the potential to have ripple effects for other jurisdictions that are currently considering this issue and if so, what should we be watching in the weeks, months ahead as other states continue to try to push back against these policies in the way that California advocates successfully have?

LEVINSON-WALDMAN: I do think the Tennessee opinion is going to be very important because it’s at the forefront of what the courts have said about this issue. And I think two things are going to combine here. One is progressive legislatures around the country are going to see that Governor Brown in California made a finding that there is no strong connection between suspending a license and increasing the likelihood of folks paying. That as well as they are relying on a very important report that showed that over 40% of those whose licenses were suspended within six months had lost their jobs. That came out of New Jersey but it illustrates that this is a nationwide terrible economic policy, terrible anti-poverty policy.

VALLAS: A staggering statistic that I want you to repeat because it puts such a fine point on the connection that you guys have been drawing between this type of policy and the actual outcomes.

LEVINSON-WALDMAN: It is staggering. Almost half of those who lost their license in the study then lost their job within six months. If the current situation continues and goes on the state is going to be facing a harsh response from the courts a la the Tennessee opinion.

CIOFI: You know, the Tennessee opinion really reminds me of a case from 1983 when the Supreme Court observed that revoking somebody’s probation because they can’t afford to pay isn’t going to make the payment forthcoming and I think that is really at the heart of this. You can think of all kinds of horrible things to do to people but if you can’t, if people really can’t afford to pay then we’re only just sinking them deeper and deeper into a hole that they can’t come out of. And I think the fact that we’re still having these conversations in 2017 just goes to show how truly entrenched the system of using our courts of revenue centers really is. We continue to just try to think of new ways to coerce people into paying money they don’t have. And that is wrong and it’s counterproductive.

LEVINSON-WALDMAN: I want to add one point for those listening who are in cities who are maybe thinking to themselves well yeah cars are really important for the suburbs and the exurbs but maybe this isn’t such a big deal for city folk. When you combine in DC and in many cities across the country the affordable housing crisis with this trend of the suspension of drivers licenses it creates enormous problems for low income folks living in cities because we have priced out here in the District of Columbia and San Francisco and in New York and in many cities throughout the country, we have priced out low income community members from living near the metro or the subway and the car just becomes critical to get to work, to do the basic life tasks, to be able to pick up mom or daughter, to get to the drugstore. And so when we take away that mode of accomplishing a critical life task, the fact that we’re in a city doesn’t mean this is any less terrible and some cases worsens it for our municipal residents. And I think that’s one of the reasons that we’re optimistic about where this is going to head at the policy level here in the district, one of our terrific and progressive councilmembers, Elissa Silverman, committed publicly –

VALLAS: One of my favorite guests on this show.

LEVINSON-WALDMAN: A terrific guest of this show has said publicly at the late October hearing I mentioned that she will be introducing legislation very soon to address this issue. Ward 8 councilmember Trayon White is very strong on this issue. And we’re particularly excited that our mayor Muriel Bowser has been engaging some very thoughtful reform work, has now introduced a pilot program that just rolled out last week and it is going to end the automatic suspension in the district for low income residents who are returning citizen, who have been previously incarcerated either through the Federal Bureau of Prisons or in the DC jail. Now we recognize that that’s, there are many additional things that need to be solved but it’s important step in the right direction and it reflects that the city’s leadership is really grappling seriously with this issue and I think that’s due to efforts like great advocates, Angela and others around the country who have lifted up this issue as a critical anti-poverty matter.

VALLAS: So I want to thank you both for taking the time to talk about this important issue, how it’s spread and what people are doing to combat it. I wish we had more time, I wish we had the entire show to just talk about this with you guys but what we are going to be sure to include in our nerd heaven syllabus this week is links to a lot of the different things you guys have been discussing as well as where people can get help if they’re facing this problem. If you’re listening and this is something that you’re facing, if you’re in the district TZEDEK DC is a great place to go but there are other options as well across the country so we’ll make sure that that’s part of this week’s syllabus. Angela Ciofi is the litigation director at the Legal Aid Justice Center in Charlottesville, Virginia, a place close to my heart. And Ariel Levinson-Waldman is the founder and executive director of TZEDEK DC, a fantastic new legal aid program here in DC thank you both for joining and it’s great to see you both.

CIOFI: Thank you.

LEVINSON-WALDMAN: Thank you.

VALLAS: And that does it for this week’s episode of Off Kilter, powered by the Center for American Progress Action Fund. I’m your host, Rebecca Vallas, the show is produced each week by Will Urquhart. Find us on Facebook and Twitter @offkiltershow and you can find us on the airwaves on the Progressive Voices Network and the WeAct Radio Network or anytime as a podcast on iTunes. See you next week.