Category Archives: Policy and Politics

Much Ado About Nothing: Attorney General Eric Schneiderman’s “Groundbreaking” Reforms

Isaac Lara, CLS ’17

The recent decision by Cook County State’s Attorney Anita Alvarez to return charges in the police shooting of Laquan MacDonald more than a year after his murder have raised questions again over whether local prosecutors are capable of impartially investigating police shootings. After all, many local prosecutors depend on law enforcement agencies in collecting evidence, producing testimony for criminal trials, and supporting them during their political campaigns. Such relationships can create conflicts of interest that undermine the public’s confidence in the judicial system to secure justice for victims of police homicides.

To address this problem, some state elected officials have advocated transferring authority for the investigation and prosecution of police-caused civilian deaths to state attorneys general. New York Attorney General Eric Schneiderman is one of the nation’s leading proponents for such a move. At Schneiderman’s behest, in 2015, Governor Andrew Cuomo issued Executive Order 147, which removed authority from local district attorneys over certain types of police-caused civilian deaths and transferred special powers to investigate police shootings to the Attorney General’s Office. Schneiderman himself touted the novelty of the action, suggesting that New York’s approach would eliminate the conflict of interest that may exist when district attorneys investigate law enforcement. He even went so far as describing it as a huge step towards stopping mass arrest and mass incarceration.

However, Schneiderman may have overestimated how effective his new powers really are. While these new prosecutorial powers may draw national headlines, models like Schneiderman’s are unlikely to have a strong impact on removing the conflict of interest that exists between district attorneys and law enforcement.

1. The Attorney General’s Office Already Has the Power to Intervene in Police Shooting Cases

First, Schneiderman’s new prosecutorial powers are not nearly as new or groundbreaking as he has described. The common law in New York already confers upon the Attorney General the authority to bring charges against defendants or intervene in criminal proceedings.[1] For example, in People v. Miner, the New York Supreme Court delineated the power to conduct and intervene in prosecutions of “certain classes” of criminal cases.[2] While this case alone may not justify the inference of power to intervene in any criminal proceeding—such as a police-caused civilian death—it, combined with later opinions, can generally be interpreted to apply to all types of state crimes.[3]

Subsequent case law also demonstrates the broad powers that the New York Attorney General has in prosecuting defendants relative to other law enforcement agencies. For example, in Johnson v. Pataki, the Court ruled that district attorneys do not operate in a “zone of independence” that shielded them from intervention from the Attorney General because the state constitution had not designated a specific—let alone exclusive—prosecutorial duty upon them.[4]

2. The New York Attorney General Lacks the Requisite Expertise and Resources

Second, the New York Attorney General’s office generally lacks the expertise and resources that district attorneys typically have in criminal prosecutions. After all, before Schneiderman’s transfer of power, the vast majority of the Attorney General’s criminal prosecutorial powers were statutorily limited to financial schemes such as securities fraud, money laundering, consumer fraud conspiracies, and occasionally organized crime.[5] Some of the notable homicides they have independently prosecuted without the assistance of outside agencies were based off referrals from local prosecutors involving either cold cases or elder abuse. On the other hand, district attorney offices like Robert Johnson’s in the Bronx have handled nine cases of fatalities involving the NYPD, as well as two nonfatal cases in the past year alone.

Given the office’s limitations, it is hard to believe that the Attorney General would be capable of adequately investigating a homicide case involving police officers, which is an extremely complex matter warranting extensive investigative resources, especially in the first few hours after an incident. Schneiderman, for his part, has argued that he is willing to dispense an unlimited amount of money from his office to support his new prosecutorial duties. However, little effort has been spent in showing how his office would ensure taxpayer funds are spent efficiently.

3. District Attorneys Still Remain Involved in the Investigation

Third, Schneiderman’s new prosecutorial powers are superfluous given the continuing involvement of district attorneys in police shooting cases. For example, after Governor Cuomo issued Executive Order 147, Schneiderman directed all of the state’s 62 district attorneys to conduct a preliminary investigation into any police shooting case before it is transferred to his office. This preliminary investigation includes interviewing witnesses, drafting search warrants, and collecting evidence, among other responsibilities.[6] Such an instruction therefore undermines the purpose of the Governor’s executive order, which was to strip district attorneys of their jurisdiction over police shootings.[7] Thus, Schneiderman has permitted New York’s district attorneys to remain part of the investigative process despite his purported lack of confidence in them to conduct impartial investigations in police shooting cases.

More importantly, though, since both the Attorney General and district attorneys are obligated to follow the Governor’s executive order as issued, any attempt by Schneiderman to amend that order by delegating a portion of an investigation to district attorneys may be unlawful. After all, only the Governor may amend a legal executive order.[8] This makes it likely that the evidence collected by district attorneys during the preliminary stages of an investigation will be challenged by opposing counsel as inappropriately obtained.

4. Conclusion

Although New York Attorney General Eric Schneiderman praised Governor Andrew Cuomo’s executive order to transfer cases involving police-caused civilian deaths from local prosecutors to his office, he may have overstated its efficacy. First, his office already possesses the power to intervene in police shooting cases without the executive order. Second, even if Schneiderman chooses to manage these cases, his office still lacks the requisite experience and resources to manage the increasingly complex investigations to which district attorneys are already accustomed. Third, the executive order itself is redundant in that it strips district attorneys of their jurisdiction over police shooting cases because of presumed bias, while still requiring them to be part of the preliminary investigation.

Therefore, Schneiderman—who has never prosecuted a crime, let alone a homicide—faces difficulty in explaining what impact his “new” powers will ultimately have on police-involved shootings. Perhaps a more effective response than Executive Order 147 would have been to lobby the state legislature to reduce the broad legal latitude that officers currently have in determining what constitutes a reasonable risk to his or her own safety. That would help alleviate the perception of a conflict of interest by reducing the high barriers that district attorneys face in convicting police officers for shooting unarmed civilians. It would also ensure that the families of those who lost their lives during encounters with the police have a fair opportunity to obtain justice.

[1] Earl H. De Long, Powers and Duties of the State Attorney-General in Criminal Prosecution, 25 J. Crim. L. & Criminology 358, 362 (1934).

[2] People v. Miner, 2 Lans. 396 (N.Y. App. Div. 1868).

[3] Long, supra note 1, at 363.

[4] Johnson v. Pataki, 229 A.D.2d 242 (N.Y. App. Div. 1997).

[5] NY CLS Exec. § 63.

[6] E-mail from Eric Scheiderman, Att. Gen., State of New York, to District Attorneys of the State of New York (July 13, 2015) (on file with author).

[7] “Such appointment of a special prosecutor will supersede in all ways the authority and jurisdiction of a county district attorney to manage, interpret, prosecute or inquire about such incidents.” New York Exec. Order No. 147 (July 8, 2015) (emphasis added).

[8] NY CLS Const. Art. IV, § 1.

Climate Change Policy and the 2016 Presidential Election

Gregg Badichek, CLS ’16

The primary debates offer the false impression that climate change is a political issue, with consequences coming decades from now. Climate change is likely be the defining human crisis of the 21st century,[1] requiring a consistent, immediate array of responses. For this reason, voters should consider how candidates would treat President Obama’s considerable—and innovative—climate legacy.

President Obama’s Climate Action Plan

A focal point of the President’s climate legacy is his Climate Action Plan (“CAP”), outlined in June 2013. The plan is a broad aggregation of tactics united under three strategic pillars.[2] First, the plan aims to reduce America’s reliance on carbon fuels and instead promote clean energy sources. This pillar incorporates the contentious Clean Power Plan, which refers to the Environmental Protection Agency rule for regulating carbon output from existing power plants. Also involved is the EPA’s rule implementing final Carbon Pollution Standards for new, modified, and reconstructed power plants. Both finalized this year, the rules are promulgated pursuant to EPA’s authority under Clean Air Act sections 111(d) and 111(b), respectively.[3] The second pillar promotes climate change preparedness through a large mix of Executive tools, such as directives to administrative agencies, the creation of task forces to meet various infrastructural goals,[4] and Administration-led educational initiatives.[5] The third pillar involves Executive efforts to spur global climate communication, the building of dedicated coalitions and forums, and the development of multi-national public-private partnerships pursuing specific climate-related missions. This would include US efforts to seek a robust framework for global emission reduction at the November 2015 UNFCCC conference Paris, France

The Plan’s nuances are many, and far beyond the scope of this article. The takeaway is that the plan—for its reliance on administrative agencies, central coordination, and international partnering—is intrinsically Executive in nature. Thus far, the involvement of the other two co-equal Federal branches has largely taken the form of mitigations of the Plan or outright assaults on its integrity. Unlike environmental legislation or court rulings, the Plan’s Executive characterization binds its survival to the election. The President has vast authority over administrative agencies and their regulations, including the appointment of agency leadership and the setting of their agendas. Just as the President’s Executive authority upholds the Plan, so too will a subsequent President’s agenda result in either the Plan’s continuance or death.

In light of the fact that this plan is uniquely tied to the executive branch, how would the likeliest Presidential candidates of each party wield the broad Executive discretion that underlies much of the CAP’s substance? Will they honor these Executive maneuvers as prudent, and continue them? Or will they denounce the plan as Executive overreach, scaling it back with their own authority?

Democratic Candidates

Leading Democratic candidates Hillary Clinton and Senator Bernie Sanders have both supported climate change action and endorsed the supporting scientific consensus. While Senator Sanders’ environmental record is the stronger of the two, both have time and again reaffirmed their commitment to addressing the issue. During the October 2015 Democratic Debate, Sanders highlighted his efforts to pass legislation that would put a price on carbon. Sanders has called climate change the greatest threat to national security, and opposed the politically charged Keystone XL Pipeline for far longer than Secretary Clinton, who only recently denounced the project. Clinton, for her part, supported President Obama’s efforts at establishing a climate change legacy during her time at the State Department. Clinton fully endorses the President’s Plan, and because of her experience in the Obama Administration, she appears well positioned to continue implementing it should she take office. Were either leading Democratic candidate to take office, the contours of President Obama’s climate legacy would persist—if not expand.

The Republicans

The Republican positions on climate change stand in stark contrast to those of the Democratic frontrunners. While a considerable number of the Republican presidential candidates do not, in fact, deny the existence of climate change, the group’s current leaders—Senator Ted Cruz and Donald Trump—embrace ideas that stand contrary to scientific evidence. Cruz has referred to mainstream climate science as “partisan dogma and ideology.” Trump has haphazardly presented his views in occasional interview exchanges and Tweets, claiming not to believe in anthropogenic global warming and often conflating climate and weather. Trump frequently describes global warming and climate change as schemes laid bare when he experiences cold weather.

Senator Marco Rubio and Dr. Ben Carson—who trail Trump and Cruz at time of writing—likewise refuse to acknowledge the pressing risks of anthropogenic climate change. Carson has referred to climate and weather variations as natural phenomena, over which humans have no control and on which society should not focus. He has also discounted the idea that there is scientific consensus on anthropogenic climate change. Rubio, perhaps struggling to stake out a more moderate position on the subject, has recently argued that America’s economy cannot sustain governmental climate regulation.

Conclusion

For the President’s climate change legacy to endure, a Democratic candidate must win the 2016 election. However, the results of one presidential elections will not ensure climate progress. All presidential candidates should be rigorously challenged—by each other, the media, and, most importantly, the voters—on their climate change positions, and asked to describe with specificity what their administration would do with its inherited CAP: use the executive authority to roll it back, or turn it into the foundation for a sustainable climate change infrastructure? Without the answers to these questions, voters will not be able to make an informed decision on the most important issue facing humanity.

[1] The various risks of climate change were discussed with unprecedented force in the Intergovernmental Panel on Climate Change’s 5th Assessment Report, which can be found here: https://www.ipcc.ch/report/ar5/.

[2] President’s Climate Action Plan Tracker, Sabin Center for Climate Change, http://web.law.columbia.edu/climate-change/resources/presidents-climate-action-plan-tracker.

[3] 42 U.S.C. § 7411 (1963). The EPA maintains an overview of the differences here: What EPA is doing, Environmental Protection Agency, http://www2.epa.gov/cleanpowerplan/what-epa-doing#overview (last accessed December 5, 2015).

[4] President Obama established the Task Force on Climate Preparedness and Resilience on November 1, 2013 to “advise the Administration on how the Federal Government can respond to the needs of communities nationwide that are dealing with the impacts of climate change.” State, Local, and Tribal Leaders Task Force on Climate Preparedness and Resilience, TheWhiteHouse.Gov, https://www.whitehouse.gov/administration/eop/ceq/initiatives/resilience/taskforce.

[5] The U.S. Climate Resilience Toolkit, http://toolkit.climate.gov/ (last visited Dec. 1, 2015).