Crime, Clemency, and Constitutional Corrective Action

“[T]he world may know, that so far as we approve of monarchy, that in America the law is king. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.”

--Thomas Paine, Common Sense, 1776

Last week, many criminal justice advocates rejoiced at the Department of Justice’s announcement of a broad clemency initiative targeting “nonviolent felons who have served at least 10 years in prison and who would have received significantly lower prison terms if convicted under today’s more lenient sentencing laws.”

Many of the potential beneficiaries of the program were convicted of drug crimes between 1980-2010, during which time there only significantly more draconian penalties across the board and gross disparities in sentences based on certain types of drugs (powder v. crack cocaine being the most infamous).

As the Times notes, while Congress reduced (but did not eliminate) the disparity by passing the Fair Sentencing Act (FSA) in 2010, it has not chosen to apply the new sentences retroactively (though the Supreme Court did rule, 5-4, that the lower minimums apply to people who committed crimes prior to the law being enacted, but who were sentenced after the bill became a law—see: Dorsey v. United States, 567 U.S. ___ (2012)).

The decision not to apply the Fair Sentencing Act retroactively was not made without significant consideration by the Legislative branch. Indeed, in the wake of the FSA’s passage, Senators Dick Durbin (D-IL) and Mike Lee (R-UT) proposed broader retroactively in the “Smarter Sentencing Act”, which would allow individuals to petition the courts for sentence reductions commensurate with the FSA.

While the bill has yet to receive a vote, the Senate Judiciary Committee approved the Act by a bipartisan vote of 13-5 in January 2014. It is a good bill—a critical second act to the FSA—and Congress should pass it without delay.

But where does that leave the President’s new clemency system? Is it an appropriate tool to use to modify potentially thousands of sentences in a way that Congress specifically rejected when it passed the FSA only 4 years ago?

Linda Greenhouse, former SCOTUS scribe for the Times and current Journalist in Residence and Lecturer at Yale, wrote in January, “Keeping a known and finite group of people locked in a system acknowledged to be irrational is irrationality itself.”

I completely agree and that’s a darn good argument to make to urge House and Senate members to pass the Smarter Sentencing Act. It is, however, not such a good argument for the unilateral imposition of what one unitary Executive deems “rational” (indeed, logical as you may be, dear reader, it stands to reason that the officeholder at 1600 Pennsylvania Avenue is quite likely to disagree with your sense of rationality over time).

Indeed, the use of the unilateral clemency power is a far cry from supporting legislative changes to criminal laws, sentencing guidelines, or policies related to the use of prosecutorial discretion. In all three of those instances, the Executive branch is either using authority specifically granted to it and it alone under the Constitution, or is seeking to persuade another branch to support a specific policy recommendation.

The clemency power, while constitutionally authorized, has not traditionally been applied to situations in which Congress or the Courts could act—through their basic structure—to cure the underlying injustice.

As Chief Justice William Rehnquist declared in Herrera v. Collins, 506 U.S. 390 (1993), “Clemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted” (emphasis added).

Like presidential pardons, which can and often are abused for political gain, a broad grant of clemency by the President, particularly where the underlying effort conflicts with recent Congressional action (see Justice Robert Jackson’s famous concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)), is a tool that lends itself to overreach, particularly in lame duck terms.

Thus, sympathetic as I am to the urgent injustice the President is seeking to address, I cannot support a blanket use of the clemency power to address such an injustice (just as I cannot accept broad based commutations of death row inmates by governors despite my personal view that the death penalty is heinous and unconstitutional in all cases).

Instead, we must actively persuade our fellow citizens and our elected representatives to pass laws to end the era of irrational drug penalties and, if they choose not to do so, we must punish them at the ballot box. That’s the way democracy functions—not by fiat or force, but by politics and persuasion.

This Land is Whose Land? From NYCHA Housing to Nevada’s Ranches

Was a high wall there that tried to stop me

A sign was painted said: Private Property,

But on the back side it didn't say nothing —

This land was made for you and me.

-- Woody Guthrie, “This Land is Your Land,” 1940

In the summer of 2000, our family rent-a-car emerged from the Grand Tetons and traveled down National Highway 26 into the town of Jackson, Wyoming. As we sped along (the urgent need for pancakes and flat, clear terrain propelling us forward at speeds that would be reckless at best on the I-95 corridor), I stared out the window and watched the cows chewing their weight in grass on federal property (about half of Wyoming is owned by the U.S. Government—see map, below).

Curious about the agreements that allowed for such private use of public property, I asked our waiter at the local diner who owned the cows and how much he/she paid to have them grave on “federal property.” The waiter, already put off perhaps by a New Englander wearing his ever-present Sox jacket, set his pen and paper on the table, looked at me, and declared simply, “That’s our land.”

I was firmly committed to putting pancakes over politics, so I demurred further argument, certain that whoever the “our” was didn’t include me.

This month, a dispute over federal grazing fees charged to Western ranchers once again erupted, with armed civilians taking up positions against Bureau of Land Management rangers who, pursuant to a court order, attempted to confiscate 500 cattle owned by Cliven Bundy, who has been illegally grazing his herd on public land since 1993.

Senate Majority Leader Harry Reid (D-NV) responded by calling the armed vigilantes “domestic terrorists”, while Nevada’s junior Senator, Dean Heller (R), called Bundy’s supporters “patriots.”

Not only is there no agreement on what taking up arms against the federal enforcement of a court order should be called, there isn’t even consensus on the facts underlying the case. Washington Post columnist Marc Theissen decried Reid’s “domestic terrorist” comment, stating that “defending your property against a paramilitary force of armed federal agents is not the equivalent of blowing up a federal building or sending letter bombs” (emphasis added).

Indeed, while Bundy’s abhorrent comments on race and his unwillingness to pay below-market grazing fees to the Federal Government have given him 15 minutes in the national spotlight, what his case and the story of the diner in Jackson are really about is the very nature of property rights—not just in the American West, but across the country.

Indeed, I’ve spent the last week pondering Theissen’s remark, trying to come up with an East Coast equivalent to understand the “ownership” Bundy and people like him feel over land whose title is in our collective name. As it turns out, we have a pretty good analog right here in New York City in how we try to grapple with the difficult concept of “home” as it relates to scarce and precious public housing resources.

This month, NYCHA General Manager Cecil House testified before the New York City Council about the Housing Authority’s “rightsizing” plan. As the wait list for public housing continues to grow (in 2012, NYCHA projected that nearly one in three units (55,000) were “underoccuiped”, while the wait list swelled to 160,000 families), NYCHA has sought to optimize apartment usage by “transitioning families to apartments appropriate for their needs.”

As House stated, “Rightsizing does not only improve the quality of life of current NYCHA residents but also provides housing to more New Yorkers on our waiting list.”

The rightsizing issue has been extremely controversial, largely because its very nature necessitates removing people from their homes and placing them in smaller apartments (particularly older residents whose children have moved out). NYCHA is, after all, a public resource and rightsizing is absolutely needed to ensure that new families can take advantage of the opportunities it provides.

However, if our homes are indeed our castles, it is also understandable as to why ranchers or public housing tenants would feel ownership, the deed notwithstanding.

In situations like these, where emotions run hot and mistrust lurks around every corner, there are few good choices. However, our system of government is rooted in the consistent application of the rule of law, rather than the fallible whims of officials.

Indeed, just as the BLM didn’t attack Bundy for who he was, but for what he did (violate the law by refusing to pay a standard fee), so NYCHA’s rightsizing is not directed at individual residents as punishment, but is instead enforced as part of a contractual agreement entered into by tenants with the Housing Authority.

As long as the system itself is fair and people have the opportunity to argue their case before a neutral arbiter, that’s all we can ask in a Republic. Taking up arms against that effort is an affront to a government of laws itself—a government that is fallible, but far better than the alternative.

Social Impact Bonds: Spurring Innovation in Mass./NYC

“Social impact bonds offer an innovative way for public, private, philanthropic and nonprofit actors to come together and align their skills and resources in pursuit of measurable, positive social change.”

-- Kristina Costa, Center for American Progress, 2014

Last week, Dax-Devlon Ross profiled Roca—a Chelsea and Springfield, Mass. based non-profit designed to steer “high risk” youth away from poverty and violence and toward gainful employment and a middle-class life. Roca has done something all too rare in the social service world—commit to a data-driven approach to securing its goals, whereby success must be proved, rather than assumed.

Roca’s latest project is designed to reduce recidivism among young men. As part of the project, Roca plans to track every interaction between its employees and the participants in an online data system. At the first sign of trouble, employees initiate an intervention to get at the underlying cause of concern and forge a plan to keep the participant on track.

Roca’s program was recently awarded $27 million in seed money from Governor Deval Patrick’s Juvenile Justice “Pay for Success” Initiative. As stated in the award release:

[I]n Massachusetts, 64 percent of young male ex-offenders reoffend within five years, and only 35 percent of these young men gain employment within a year of release. Roca’s groundbreaking approach to positive youth development aims to interrupt the cycle of recidivism by filling a gap in services for high-risk populations. Through this project, Roca will aim to reduce the number of days that young men in the program are incarcerated by 40 percent. If this goal is met, the project would generate millions of dollars in savings to the Commonwealth that fully offset the cost of delivering services. 

The Social Impact Bond (SIB) model (shown in the nifty graphic from the Rockefeller Foundation) holds great promise, not simply as a financing mechanism in an era of budget shortfalls, but as a spur to creative experimentation within cities and states to solve some of our most pressing problems. SIBs allow government to invest in programs today that improve the lives of thousands and save money over the long term.

On some level, this is not a particularly novel concept. Indeed, business owners have long understood that investing in new equipment or hiring additional employees imposes short-term costs in pursuit of long-term profit. American families understand that buying life insurance and depositing money in their children’s college savings plans will pay dividends down the line.

Government should be no different. And yet, we have encountered many situations in recent years where we fail to make short-term investments that yield long-term gains. For instance, in New York City, we continue to shelter families without homes for as much as $36,000 per family per year, while rental assistance with support services for families can cost less than $10,000/family annually.

While SIB programs have heretofore largely been confined to programs concerning recidivism and formerly incarcerated individuals, many have openly wondered whether they can be put to use in other fields, most notably early childhood education and public health initiatives that allow for concrete measurements over a discrete period of time.

In 2012, my boss, then-Manhattan Borough President Scott Stringer, proposed using a SIB to expand availability of Early Head Start (EHS), an early intervention and prevention program for pregnant mothers and families with children ages 0 – 3. Despite the fact that children who attend Early Head Start are more successful educationally and emotionally, the program is so poorly funded that it enrolls less than 1 percent of eligible infants. Only 7000 slots are funded for children in all of New York State. Once full-day pre-K is up and running, the Administration should turn its attention to the critical formative years before pre-K, with SIBs as a possible financing mechanism for EHS or other programs.

SIBs aren’t the only mechanism that should be used to secure long-term savings. Municipal labor should also play a key role in this effort through “gain sharing.” 20 years ago, Mayor David Dinkins launched a “Productivity Advisory Council” that advocated for a gain-sharing model that would streamline city services and share savings with city workers.

One of the great successes was a Parks Department effort to improve efficiencies in the mechanics of tree pruning throughout the five boroughs. In short, New York had been force to cut workers to balance the budget during the early 90s recession. In the winter of 1993, the city’s tree workers were given the power to craft their own strategy, with an implicit promise of hiring back some of those laid off should city workers prove the victors.

As noted in a Harvard Business School case study, “Prior to the study, climbers and pruners had no input into how the crews were configured or what work they would be assigned on a given day; these decisions were the prerogative of the supervisors, only some of whom had any prior forestry experience.”

In two months, the workers’ improvements made them far more efficient than contractors and saved the city an estimated $100,000.

Whether through a public-private SIB model or a gain-sharing model that leverages the expertise and ingenuity of public employees, cities and states owe it to taxpayers to do all they can to reduce preventable costs by proactively investing in innovative programs.