Monthly Archives: January 2021

Seyfarth Synopsis: Just before the holidays, the Department of Labors Wage-Hour Division issued its final pay regulations governing tipped employees. The final regulations, which were published December 22, 2020 and will be effective March 1, 2021, provide a ray of hope in what was an otherwise miserable 2020 for hospitality employers. The regulations codify the abolition of the 80/20 tip credit rule and guide the circumstances in which back-of-the-house employees can be included in tip pools. The regulations explicitly exclude managers and supervisors from taking a share of employees tips. In 2021, hospitality employers will have to watch how the courts interpret these regulations.

The End Of The 80/20 Rule?

The main course in the DOLs regulations, and one for which hospitality employers have grown hungry, is the end of the 80/20 rule at least from the DOL. The 80/20 rule has had a somewhat complicated recipe. As those familiar with the tip credit know, an employer can pay certain employees who receive tips from customers a wage below the minimum wage. This practice is permitted on the theory that the tips employees receive from customers will more than make up the difference. But doing so requires an employer to meet some technicalities, including that this tip credit can be taken only for the hours the employee spends working in a tipped occupation. So, for example, a server at a hotels restaurant can be paid the tip credit for the hours they spend as a server, but not for the hours they spend at the hotel as a maintenance employee. More difficult questions emerge, however, when the server spends part of their time on duties related to server duties, but that do not produce tips, such as cleaning or setting tables. Under DOL regulations, tipped employees are allowed to perform related duties occasionally, but the DOLs regulations have never defined those two terms.

To fill the plate, the DOL issued some opinion letters and then in 1988 the DOLs Field Operations Handbook an operations manual made available to investigators ultimately determined that a tipped employee could spend no more than 20% of their time on related duties (which remained undefined) and remain eligible to be paid under the tip credit. In other words, an employee would have to spend 80% of their time performing tipped job duties. The 80/20 dual jobs rule remained a little-known side dish until more than a dozen years ago, just after wage-hour collective and class litigation began its boom. As can be imagined, tip credit litigation blew up as well, with many cases generating seven-figure settlements centering on whether restaurant servers side work is a related duty and what percentage of time servers spend performing those duties.

In November 2018, the DOL sought to abolish the 80/20 rule through an opinion letter and a field assistance bulletin. In its place, the DOL explained that an employer may take a tip credit for time when an employee in a tipped occupation performs related non-tipped duties either contemporaneously with or for a reasonable time immediately before or after performing tipped duties. Under this rule, the DOL explained, when a tipped employee engages in a substantial amount of separate, non-tipped-related duties, such that they have effectively ceased to be engaged in a tipped occupation, the tip credit is no longer available. Further, the DOL defined related duties by stating that a non-tipped duty is presumed to be related to a tip-producing occupation if it is listed as a task of the tip-producing occupation in the Occupational Information Network O*NET.

Beginning in early 2019, however, as Seyfarth previously reported, district courts largely have refused to give it deference and have clung to the 80/20 rule. Several of them reasoned that the opinion letter and field assistance bulletin did not provide persuasive reasons for an abrupt change in position after decades of the 80/20 rule. Strangely, these district courts instead have chosen to defer to the no-longer-effective 80/20 rule, or have imposed it as a matter of judicial fiat.

Therefore, in the late 2019, the DOL issued a proposed regulation and then, last week, published final regulations that hopefully will be the death blow to the 80/20 rule. In doing so, the DOL largely restated, with some minor tweaks, the guidance from its November 2018 opinion letter and field assistance bulletin. Perhaps responding to some of the criticism of district courts, the DOL in these regulations sought to explain why it was abandoning the 80/20 rule. For example, among other reasons, it stated:

An employer of an employee who has significant non-tipped related duties which are inextricably intertwined with their tipped duties should not be forced to account for the time that employee spends doing those intertwined duties. Rather, such duties are generally properly considered a part of the employees tipped occupation, as is consistent with the statute.

It remains to be seen if district courts will defer to this guidance now that the DOL has officially codified the rule. They should, as this guidance is reasonable and went through lengthy notice-and-comment rulemaking. Further, employers must be mindful that some states (e.g, Connecticut, New Jersey) have enacted their own versions of the 80/20 rule, in which employers in those states will need to follow regardless of the DOLs new rule.

Back-of-House Staff May Collect Tips In Mandatory Nontraditional Tip Pools

In addition, the DOLs regulations also address amendments to the FLSA made in the Consolidated Appropriations Act of 2018. The new regulations do not change longstanding regulations that apply to employers that take a tip credit under the FLSA. Employers that claim a tip credit must ensure that a mandatory traditional tip pool includes only workers who customarily and regularly receive tips. Under the new regulations, however, employers that do not claim a tip credit may now implement mandatory, nontraditional tip pools. In this scenario, tip pools may include employee who do not customarily and regularly receive tips, including back-of-house employees that may not be customer-facing, such as cooks and dishwashers.

Managers and Supervisors: Keep Your Hands Off Employees Tips!

The new regulations also explicitly prohibit managers and supervisors from keeping employees tips for any purposeeven in a nontraditional tip pool situation during which the employer does not take a tip credit and back-of-house employees are permitted to take a share of tips. In order to prevent employers from keep[ing] tips, the new regulations require employers who collect tips and redistribute them through a mandatory tip pool to redistribute the tips no less often than when it pays wages to avoid penalties. The regulations also require employers who collect tips and redistribute them through a mandatory tip pool to keep records of the same even if the employer does not take a tip credit.

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DOL Issues New Tip Regulations: Will 2020 Be The Last Year Of 80/20? - JD Supra

Prime Minister Yoshihide Sugas administration is gearing up to establish an agency that will lead the digital transformation of Japan.

But the key to success is for the agency to create a blueprint for Japans digitalization from administrative services to working with the private sector and nurturing engineers and have the necessary power to work toward that goal.

What needs to be done to prevent the digital agency from being another bureaucratic entity that will simply coordinate policies among relevant ministries?

The digital agency should become a strong organization which can function as a powerful control tower, with highly talented people gathering from both the public and private sectors, to lead the digitalization of the society as a whole, Suga said on Sept. 23 at a meeting of ministers involved in digital reform.

The government has created an office to prepare for the establishment of the agency, and unprecedented steps are being made, such as setting up an online platform to solicit opinions from the public.

But the success of the agency depends solely on whether it can indeed serve the role of a powerful control tower.

In order to achieve this goal, the agency should make its objective the digitalization of the Japanese society as a whole, and the agency should be positioned above other ministries and become a special zone for civil servants to secure human resources with cutting-edge skills and global perspectives.

First and foremost, the agency that will serve as the core of national cyberpower should aim at realizing digital transformation of Japanese society as a whole instead of limiting its role to integrating procurement of the ministries administrative systems.

Many industrialized nations have organizations similar to the digital agency, but their objectives and authorities differ.

The Government Digital Service, created in the United Kingdom in 2013 under Prime Minister David Camerons administration based on lessons learned from past failures regarding the governments systems procurement, is working progressively to digitalize administrative services under a thoroughly open and user-friendly approach, realizing agile development.

While the GDS can serve as a model for Japan in various aspects, its main role is limited to digitalizing government functions.

Some countries are trying to digitalize the whole society. In Singapore, for instance, the Smart Nation and Digital Government Office under the Prime Ministers Office works as the brains of the government to formulate policies in building a Smart Nation, including promoting cashless payments and use of digital data.

The Government Technology Agency implements the offices policies in cooperation with the private sector, as well as nurturing human resources adapting to the digital economy and providing digital tools for administrative services related to individuals and companies.

Putting aside the question of its surveillance society approach, Singapores digitalization reform provides a model for Japan in the sense that it is targeted at the whole society.

So what is the goal of Japans digital agency?

The Cabinet Secretariats National Strategy Office of Information and Communications Technology has been tackling the issue of different ministries operating systems with different specifications procured under different budget allocations.

But what is needed now is not only getting rid of the governments vertically segmented structure in terms of system designs or budgets, but also introducing meta-level strategic thinking and consolidating digital policies and plans which are currently conducted separately by ministries and agencies, such as the industry ministry working on industrial digitalization and cashless payments, the education ministry on digitalization of education, the internal affairs ministry on the My Number social security and tax number system, local governments on regional digitalization and so forth.

In particular, cybersecurity and data strategy will mean nothing unless they are consistent everywhere.

It is necessary for the government to build the architecture and infrastructure of a fundamental platform that will serve as digital public goods for the private sector to utilize to proceed with the digitalization of the whole society.

Sanjay Anandaram of iSPIRT, a nonprofit organization which has been developing the digital platform India Stack in India, likened digital platforms to roads.

End users use the services that have been built atop (the governments) digital platforms by private businesses and public entities, Sanjay said in an interview with G20 Japan Digital. Businesses can design and innovate new services for their customers and partners using these platforms.

In a sense, the platform is like roads. The state will construct them and anyone can design and deploy any vehicle to run on them following rules, he said. The users, the public, can use these vehicles (such services) and go where they want to go.

In order to strengthen the nations cyber power as a pillar of its growth strategy, it is necessary for the government to clearly aim at digitalizing the whole society in a blanket manner and construct strong roads.

Secondly, to realize such goals, the digital agency should be positioned above other ministries.

The National Security Secretariat, established in the Cabinet Secretariat by former Prime Minister Shinzo Abe in 2014, is probably the latest example of a government entity succeeding in breaking down silos and securing effective coordination and planning authorities.

The secretariat has influence over other ministries as it is dedicated to the planning and coordination of basic direction and important matters of foreign and defense policies concerning Japans national security and because of its close relations with the government leadership, directly providing information to the prime minister and the chief Cabinet secretary.

But how can this be realized by a government agency?

Various new agencies were established following the restructuring and streamlining of government ministries and agencies conducted in the 1990s under Prime Minister Ryutaro Hashimotos administration.

For instance, the Consumer Affairs Agency was created in 2009 as an organ affiliated with the Cabinet Office in order to focus on consumer issues which could not have been dealt with appropriately because they involved a number of ministries, such as choking accidents caused by mini-cup konjac jelly and food poisoning cases caused by frozen dumplings shipped from China.

The agency was regarded as a sweeping reform that would go down in history, launched by transferring related authorities and personnel from eight ministries and a commission the Cabinet Office, the Fair Trade Commission, the National Police Agency, the Financial Services Agency, the Internal Affairs and Communications Ministry, the Justice Ministry, the Health, Labor and Welfare Ministry, the Economy, Trade and Industry Ministry, and the Land, Infrastructure, Transport and Tourism Ministry.

The Japan Tourism Agency, set up in 2008, also has as one of its goals the abolition of vertically-divided administrative functions to strengthen the governments tourism-boosting efforts under the leadership of the commissioner.

These agencies are positioned as affiliated organs of ministries.

Japans administrative system is structured in a way that ministries are positioned under the Cabinet Office, with agencies such as the Financial Services Agency, the Japan Sports Agency and the Japan Tourism Agency coming under different ministries.

However, there is one exception. The Reconstruction Agency is ranked as being the same as a ministry.

This is because the agency was not created as an affiliated organ of a ministry, but as a body under the direct control of the Cabinet on the basis of a law to establish such an agency, having an authority to plan and coordinate policies from a position above ministries.

The digital agency should be in a similar position. It could start small and grow big, but there is a danger of the agency remaining too compact.

In 2007, when the Defense Agency, which had been a subordinate body under the Cabinet Office, was given a ministry status, the government explained that the agency had already been working in the same way as government ministries, with its tasks expanding from management of the Self-Defense Forces to getting involved in policy planning for a variety of issues.

The digital agency should be engaged not only in the management of administrative systems but also in policy making, and should be positioned to demonstrate leadership over ministries from the beginning, with the potential to become a ministry in the future.

It is of course important where the digital agency will be positioned in the government, but more important is the people who will breathe life into the agency.

How should the agency be organized so that it can gather talented people from the private sector who will put their heart into digitalizing the nation for the coming era?

Prime Minister Yoshihide Suga (left) and digital reform minister Takuya Hirai launched an office established by the Cabinet Office and tasked with creating a digital agency, on Sept. 30. | POOL / VIA KYODO

Making the agency a special zone for civil servants so that people from the private sector can work there free from bureaucratic restraints is one idea.

In Japan, around 70% of the people working for the information technology industry are hired by IT vendors and the rest employed by IT user firms.

While roughly 60% of such people in Western countries including the United States and Germany are working for user companies, human resources in Japan are concentrated in companies that are entrusted with developing systems.

The number of university students specializing in data science is also relatively small in Japan, meaning the nation lacks a sufficient environment to nurture globally competitive specialists who can create added value on their own initiative.

When I conducted an interview survey on the IT industry in Japan for a year up to August, many pointed out that the seniority system of companies is resulting in few people experiencing project management when they are young.

At this moment, there are very few people in Japan who can design world-class IT architecture.

The digital agency should invite such people and provide them with an environment in which they can work to achieve their goals without feeling constrained to follow the rules and practices of bureaucrats.

The government should take the establishment of the agency as a golden opportunity to broaden the base of human resources in the IT industry and give such people the chance to work on the nations biggest project by utilizing cutting-edge technology in a free development environment.

By having a team of people who can develop and operate systems within the agency and eventually being able to send out talented people to the private sector, the digital agency can create a growth factor for the nation and for human resources development in the long term.

The digital agency should not be pie in the sky. Now is the time to establish an effective digital control tower with clear objectives, think of how to organize it and who to hire without compromising, so that Japan wont lose again in the global competition in an era of cyberpower.

Jun Mukoyama is a fellow at API. API Geoeconomic Briefing, provided by the Asia Pacific Initiative, an independent think tank based in Tokyo, is a series that looks into geopolitical and economic trends in the post-COVID-19 world, with a particular focus on technology and innovation, global supply chains, international rule-making and climate change.

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The need to digitalize Japanese society as a whole - The Japan Times

Political Report

A new law will stop the suspension of drivers licenses when New Yorkers fail to pay fines, though the governor weakened the legislation before signing it.

On New Years Eve, New York Governor Andrew Cuomo signed into law a bill that will end the suspension of drivers licenses over a failure to pay a traffic ticket, a major win for economic and racial justice advocates who have long decried the practice. The law will also reinstate the licenses of hundreds of thousands of New Yorkers, many of whom have lost driving privileges because they cannot afford to pay their fines.

Suspending drivers licenses entrenches and punishes poverty by preventing people from driving to work, taking kids to school, or visiting their doctor during the COVID-19 pandemic. People who are stopped for driving on a suspended license face misdemeanor or felony charges, and arrests of people who cant afford to pay fines and fees inflate jail populations across the country.

This win is a significant step toward scaling back economic and racial inequality in New York, Katie Adamides, New York state director at the Fines and Fees Justice Center, said in a press statement about the new law. (Note: Jonathan Ben-Menachem, the author, was employed by the Fines and Fees Justice Center until July of 2020.) The law was sponsored by Assemblymember Pamela Hunter and Senator Timothy Kennedy.

Advocates are also warning, though, that New York needs to take many other steps if it aims to fight the criminalization of poverty, especially because Cuomo cut out an important part of the legislation before signing it.

After the 2008 recession and the wave of austerity that followed it, local tax revenues dropped and tax increases became less politically viable. As a result, jurisdictions increased the amounts of fines and fees, and they imposed them on more people in order to fund government services. Since fines and fees are not adjusted according to wealth, theyre an inherently regressive form of taxation, and cities with larger Black populations tend to rely more on fines to fund government.

When the 2014 police killing of Michael Brown in Ferguson, Missouri, led to a Department of Justice investigation that exposed the towns racist and extractive policing practices, efforts to reform fines and fees accelerated nationwide. In recent years, advocates have targeted drivers license suspensions.

With its new law, New York joins 10 states that have stopped suspending licenses for failure to pay court debt, according to the Fines and Fees Justice Center. Hawaii, Oregon, and Virginia adopted similar laws last year, and others have restricted license suspensions more narrowly as well. (New York, unlike other states, already did not suspend licenses over fines and fees related to criminal convictions as opposed to traffic violations.) Advocates are hoping to get other states such as Texas to join.

Studies undertaken in New York show that drivers license suspensions for unpaid fines and fees disproportionately target Black and low-income communities, as is true nationally.

According to data released by Driven By Justice, an advocacy coalition that supported the new law, New York ZIP codes with lower average incomes and fewer white residents tend to see dramatically more suspensions. In New York City, where driving on a suspended license is one of the most-charged crimes, 80 percent of all those who are arrested for this offense are Black or Latinx.

The inequitable impact traces back to the fact that Black and Latinx drivers are pulled over and ticketed at higher rates, making them more likely to accrue debt and have their license suspended. New York courts are among the most aggressive in the country when it comes to traffic tickets. In Buffalo, for example, police issue seven times as many tickets for tinted windows as they do for speeding; drivers even told the Investigative Post in 2019 that they had received a separate ticket for each tinted window. Those multi-ticket stops are most common in Black neighborhoods.

The new law does not eliminate all drivers license suspensions related to traffic tickets, however.

The bill that had initially passed the legislature would have also ended suspensions for a failure to appear in court for traffic hearings. But in late December, the governors office requested a chapter amendment, which the legislature agreed to, removing this provision.

In a memorandum explaining the carve-out, the governor wrote: Allowing drivers to simply ignore their tickets will inevitably allow for scofflaws to remain on the roads, and present a health and safety hazard to the public.

But a failure to appear in court is connected to poverty as well. People who cant pay a traffic ticket may also not be able to take time off work to go to court, or may be unable to arrange child care. Those who can afford it can pay off their fines without the need to show up in traffic court.

Drivers license suspensions for failure to appear only punish poor New Yorkers who cant afford to take time off of work to appear in court, Scott Levy, chief policy counsel at Bronx Defenders, told the Political Report. The state is shooting itself in the foot by not ending these suspensions for failure to appear. It means that thousands of people across New York will not get the benefit of being able to drive to work without the fear of being arrested.

Under the new law, people who miss their court appearance will be afforded a 90-day grace period before their license is suspended, and two notifications will be sent by mail or digital communication. The new law also imposes a moratorium on all criminal charges for driving on a suspended license (when the suspension stems from failure to pay or appear) between Jan. 1 and July 1, when the state will implement a new system to offer payment plans to people who cannot afford their traffic tickets.

The cumulative effect of drivers license suspensions in New York has been enormous. Between January 2016 and April 2018 alone, there were almost 1.7 million drivers license suspensions in New York for both nonpayment of traffic fines and non-appearance at traffic hearings.

The new law also still allows suspensions for nonpayment of fines and fees for drivers who violate vehicle height or weight restrictions. These account for less than 1 percent of tickets statewide and mainly impact drivers of large trucks and construction vehicles.

Beyond tickets and drivers license suspensions, advocates have pointed to a broad array of potential fines and fees reforms in New York. The No Price on Justice coalition is calling for the abolition of all state-imposed court fees, commissary garnishment for court debt, arrests and incarceration for nonpayment of fines, and mandatory minimum fines.

State lawmakers have introduced legislation to address several of the coalitions policy goals. In the last session, one bill would have abolished a wide range of court fees, including the mandatory surcharge attached to criminal convictions. It would have ended commissary garnishment and debtors prison practices, too. Another bill would have required all state prisons to provide free phone calls for incarcerated people for a minimum of 90 minutes per day; currently, incarcerated people must pay exorbitant sums that they often cannot afford in order to get in touch with their families. Its likely that these bills will be reintroduced in the 2021 session.

Democrats made legislative gains in New York in 2020, including securing a newly veto-proof majority, which may ease passage for progressive legislation in the upcoming session.

Some advocates hope that this new landscape will encourage politicians to take up even more ambitious transformations of the states fiscal policy.

For example, the state property tax capa policy long pursued by Governor Cuomoprohibits local governments other than New York City from raising property taxes by more than 2 percent each year. Municipalities that have few ways to raise revenue may then end up resorting to fines and fees. Abolishing the property tax cap would give municipalities another option.

While recent reforms like ending drivers license suspensions for unpaid traffic tickets are steps in the right direction, New York is long overdue for much broader fines and fees reform, Adamides, of the Fines and Fees Justice Center, told the Political Report. Until the state ends its reliance on fines and fees for revenue, we will continue to see the extreme harm that these regressive taxes cause to those least able to afford them.

This story has been updated to reflect the authors past employment with the Fines and Fees Justice Center.

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New York Ends a Punishment That Traps People in Poverty - The Appeal

The curtain is closing on the Trump years, and America is grappling with what comes next. From families separated at the border to a pandemic raging out of control to a macabre federal execution spree, the U.S. arguably has become less that "shining city on a hill" and more like a house of horrors.

Photo of Liane Jackson by Callie Lipkin/ABA Journal.

In too many cases, collateral damage has been deemed inevitable and acceptable, in the service of expediency and political capital. Guilt or innocence have been less important than a message of tough intolerance. In the past four years, political ideology has grown dangerously aligned with totalitarian regimes where the rule of law is not just an afterthought, its an oxymoron.

A tough law and order approach to justice has been the hallmark of this administration, often with alacrity and vengeance prioritized over constitutional rights. President Donald Trump has encouraged a more aggressive police force, unleashed law enforcement on peaceful civilian protesters, praised violent white supremacists, denigrated science, and in 2020, instigated the bloodiest sweep of death row in more than a century.

But Trumps revival of the federal death penalty after years of dormancy isnt just about criminal justice, its a reflection of his administrations Old Testament throughline that has impacted every aspect of his national response.

While nearly every nation in Europe and Latin America has abandoned capital punishment, and with public support in the U.S. at an all-time low, the Trump administration nonetheless reinstated federal executions for the first time in 17 years and wasted no time playing catch up.

In 2020, the Federal Bureau of Prisons executed 10 inmates in six months, more than all the states combined. The pandemic has imperiled those working to implement the executions, has compromised defense teams ability to effectively represent their clients, and even prevented witnesses presence at executions. Nonetheless, the Department of Justice has pressed forward with its draconian agenda, planning executions within days of President-elect Joe Bidens inauguration.

As could be expected, carrying out executions during a pandemic has created a reckless domino effect, adding strain to a system already ill-equipped to deal with disease. The governments rush to kill has caused senseless risk for incarcerated people, prison staff, and everyone who lives in Terre Haute, Indiana, the ACLU wrote in an analysis of data from the Bureau of Prisons showing federal executions likely caused a COVID-19 spike.

In November, ABA President Patricia Lee Refo wrote Trump, urging him to offer reprieves: At a time of national crisis such as this, the public interest is not served by rushing forward with executions at the expense of due process, fundamental fairness and individual health and safety.

But its all in pursuit of a barbaric sense of justice that disregards public sentiment. To expedite the killings, Attorney General William Barr bypassed laws regarding the acquisition of lethal injection drugs and fast-tracked a rule to expand execution methods to include death by firing squad and electrocution.

Lisa Montgomery, the only woman on federal death row and the first to face execution in nearly 70 years, is scheduled to die Jan. 12. Montgomery is mentally ill, takes antipsychotic medications and her competency to be executed is regularly monitored.

A federal court granted a temporary stay in her case in November after both of her attorneys became ill with COVID-19 and were unable to file a clemency petition on her behalf. Cory Johnson, who attorneys have argued is intellectually disabled, is set for lethal injection Jan. 14, and Dustin John Higgs is scheduled to be put to death on Jan. 15. Both Johnson and Higgs have tested positive for COVID-19, and their attorneys are petitioning for stays of execution.

The likelihood any death row inmate would get a pardon from Trump is lowso far clemency from the president has been largely reserved for war criminals, corrupt political allies and friends. Its also unlikely the conservative-leaning U.S. Supreme Court would grant any last-minute reprieve, as the justices have been busy rejecting habeas petitions and reversing stays of execution.

While Catholic Justices Brett M. Kavanaugh, John G. Roberts Jr., Clarence Thomas, Amy Coney Barrett and Samuel A. Alito Jr. have mostly co-signed President Trumps death penalty agenda, this fall, the Roman Catholic Church unequivocally stated that the death penalty is universally unacceptable and that it would work toward its abolition, a position President-elect Biden, a practicing Catholic, supports. Pope Francis has declared opposition to capital punishment based not just on mercy, but in opposition to the idea of revenge and viewing punishment in a vindictive and even cruel way.

According to a recent Gallup poll, the percentage of Americans who consider the death penalty morally acceptable has fallen to a record low, with 60% percent preferring life without the possibility of parole to execution. State executions and new death sentences imposed are at their lowest levels in decades, continuing a sharp decline that began in 1999.

But Trump has made no secret of his philosophy, telling Larry King in 1989: Maybe hate is what we need if were gonna get something done, a statement he made pushing for executions in the notorious Central Park Five case, where five Black and Latino teens were wrongfully convicted of murdering a jogger.

They should be forced to suffer and, when they kill, they should be executed for their crimes. They must serve as examples for their crimes, Trump wrote in the $85,000 full-page ads he took out in four New York papers after the teens were arrested.

The Central Park Five were exonerated in 2002 after a convicted murderer confessed to the crime and DNA evidence proved their innocence. Despite this fact, Trump doubled down and never apologized.

Research shows the death penalty is racist, flawed and costly, inhumane and unjust, arbitrary and capricious, with no deterrent effect on public safety. According to the Death Penalty Information Center, about 42% of inmates on death row are Black, despite representing 13 percent of the population. Of the five people to be scheduled for execution between November 2020 and January 2021, four were Black.

And there are innocent people on death row. Since 1973, at least 172 people sentenced to death were later found to be innocent of the crime charged and more than half of the wrongfully convicted were Black.

If all the currently scheduled executions proceed, Trump will have put to death more people in a single year than any other administration since 1896. And no outgoing president in modern history has overseen an execution.

Trumps lame duck death chambers are the first since Grover Cleveland presided over an execution in 1889. Biden has said he will work to end federal executions, but theres nothing he can do about the administrations race to kill before Inauguration Day.

After Jan. 20, the country will turn the page on the controversy and carnage that was a hallmark of the last four years. But in these final, waning days, as the flow of devastating losses and deaths continues unabated, the loss of humanity should be no surprise.

Intersection is a column that explores issues of race, gender and law across Americas criminal and social justice landscape.

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There will be blood: Coronavirus, conflict and capital punishment - ABA Journal