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Trust or Bust: Complications with Tribal Trust Obligations and Environmental Sovereignty

Nadia B. Ahmad

The National Environmental Policy Act (NEPA) and participation rights should mean more, not less, on tribal lands when respect for tribal sovereignty and federal tribal trust responsibilities exists. This Article proposes a rights-based approach to reinvigorate tribal treaty regimes based on a historico-legal analysis of the interconnected right-of-way doctrine and environmental impact statement process for pipeline projects in “Indian Country.” This legal strategy will enrich the democratic approaches to tribal consultation, and respond to environmental justice concerns arising from lax regulations and the subsequent environmental degradation. The aim of this Article is to reframe the responses to tribal environmental challenges on account of deficiencies in NEPA and prior tribal trust claims. It also offers recommendations to overcome those challenges through analyzing the history of right-of-way regulations in Indian Country, the standards for impact statements, and treaty language. Moreover, this Article assesses tribal sovereignty through the lens of energy infrastructure projects on Indian lands, and concludes that updates to the federal right-of-way law chisel away at tribal rights to land, property, and self-determination.[1] Without a thorough reassessment of the essential rights-of-way laws that affect pipeline permitting on tribal lands, tribal environmental sovereignty will be compromised, and tribal land will be more prone to environmental degradation and pollution from increased toxins and hazards associated with oil and gas transport. This Article argues that using existing NEPA procedural remedies,[2] in concert with provisions from the updated rights-of-way regulations in Indian Country, provides project development and litigation outcomes more attenuated to Indian interests.[3]


American Indian tribes face exceptional land use, property, and environmental challenges because of hydrocarbon transport projects on their lands.[4] Due to the tribes’ various geographic locations throughout the United States, and their proximity to existing and future hydrocarbon reserves, pipelines crisscross tribal lands with increased frequency and carrying capacity.[5] A hydrocarbon transport project in a right-of-way corridor creates an economically efficient means of passage for energy resources, but such a project also sullies tribal property, sovereignty, and environmental rights. From a legal perspective, a pipeline poses significant risks to the use and enjoyment of tribal land, and uniquely threatens sacred space.[6]


While concern for pipeline siting is ubiquitous, what is less conspicuous––but equally significant––is the property and environmental rights impact of energy projects on tribal lands and on former tribal lands ceded to the United States.[7] More than 50 million acres of Indian trust lands exist in the United States.[8] Thousands of miles of easements traverse tribal lands for various purposes as crucial fragments of the national infrastructure.[9] Significant swaths of tribal lands lay within the path of major energy infrastructure projects.[10] American Indian communities experience an imbalanced proportion of environmental degradation on account of the mineral development in North America.[11]


Without improved tribal consultations and more robust treaty claims, the updated rights-of-way regulations in Indian Country will lead to a steady and blatant encroachment of tribal lands. Moreover, this will also affect all future development of energy easements, including lands of the White Earth Band of Ojibwe in northwestern Minnesota, Navajo Nation in Texas and New Mexico, and the Seminole Tribe of Florida’s Big Cypress Reservation.[12] Under these regulations, native environmental protection concerns are devalued and underappreciated, particularly in negotiating and/or contesting pipeline siting and permitting.[13] Based on the unique nature of the pipeline industry and asset specificity, long distance pipelines create distinct financing and contracting matters.[14] “[A] century of dealing with oil and gas pipelines shows just how hard it is to keep them from being used as John D. Rockefeller first discovered they could be—as levers to frustrate competition in commodity markets and as profitable tollgates lying athwart commodity trade routes.”[15] The economics of the pipeline industry also make the business climate adverse to environmental and tribal land concerns.


Part I provides the jurisdictional overlay of rights and duties involved with projects on tribal lands. Part II examines the legal nuances in the development of right-of-way regulations in what constitutes Indian lands. Parts II.C and II.D posit that NEPA sufficiently allows for stronger claims against pipeline projects. Analyzing tribal challenges to pipelines in the cases of Sisseton-Wahpeton Oyate v. U.S. Department of State[16] and TransCanada Pipeline and White Earth Nation v. U.S. Department of State[17] showcases distinct methodological opportunities to take advantage of legal remedies implicit in NEPA.[18] To counter threats to tribal environmental sovereignty by an ever-expanding consortium of oil and gas operations, Part III offers an ancillary proposal of normative guidelines. These guidelines heighten transparency, incorporate a richer understanding of the NEPA process in energy permitting, and enhance measures for a better participatory process to avoid legal showdowns, such as the Dakota Access Pipeline Project.

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[1] Rights-of-Way on Indian Lands, 80 Fed. Reg. 79,258 (Dec. 21, 2015) (to be codified at 25 C.F.R. pt. 169) (promulgating a rule “streamlin[ing] the process for obtaining Bureau of Indian Affairs (BIA) grants of rights-of-way on Indian land and BIA land, while supporting tribal self-determination and self-governance”). See also 25 C.F.R. pt. 169 (2016) (prescribing the procedures, terms, and conditions under which rights-of-way over tribal lands may be granted).

[2] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4331–4370 (2012). The Revised Draft Guidance for Greenhouse Emissions and Climate Change Impacts of the White House Council on Environmental Quality (CEQ) provides additional support for environmental protection. The legacy of previous attempts at climate change adaptation measures is diminishing with a new White House administration. Yet, existing federal regulations and environmental protection measures—along with private-public partnerships—will minimize the assault on environmental rights by federal leadership that is attuned to the interests of the fossil fuel industry. See White House Council on Environmental Quality, Revised Draft Guidance for Greenhouse Emissions and Climate Change Impacts 1–2 (Dec. 18, 2014), https://obamawhitehouse.archives.gov/sites/default/files/docs/nepa_revised_draft_ghg_guidance.pdf.

[3] Rights-of-Way on Indian Lands, 80 Fed. Reg. 72,492, 72,492 (Nov. 19, 2015) (to be codified at 25 C.F.R. pt. 169) (promulgating a rule “[s]treamlining the process for obtaining a right-of-way on Indian land”). The total climate change litigation in the United States exceeds that of the rest of the world combined. By 2013, more than 420 climate cases had been resolved in the United States versus 173 for the rest of the world. Michael B. Gerrard, Scale and Focus of Climate Litigation Outside the U.S., N.Y. Law Journal (Mar. 12, 2015), http://web.law.columbia.edu/sites/default/files/microsites/climate-change/nyljscaleandfocusofclimatelitigationoutsideofunitedstates_0.pdf.

[4] See Bill McKibben, Why Dakota Is the New Keystone, N.Y. Times (Oct. 28, 2016), https://www.nytimes.com/2016/10/29/opinion/why-dakota-is-the-new-keystone.html (discussing Native Americans conducting peaceful protests against an oil pipeline seeking to address clean water, environmental justice, and climate issues).

[5] See Jack Healy, North Dakota Oil Pipeline Battle: Whose Fighting and Why?, N.Y. Times (Dec. 2, 2016), https://www.nytimes.com/2016/11/02/us/north-dakota-oil-pipeline-battle-whos-fighting-and-why.html (stating that there are 2.5 million miles of pipelines crossing the United States).

[6] See id. (discussing the Standing Rock Sioux Tribe’s opposition to the Dakota access pipeline for crossing over sacred tribal land).

[7] Andrew S. Montgomery, Tribal Sovereignty and Congressional Dominion: Rights-of-Way for Gas Pipelines on Indian Reservations, 38 Stan. L. Rev. 195, 199 (1985).

[8] C.E. Willoughby, Native American Sovereignty Takes a Back Seat to the “Pig in the Parlor:” The Redefining of Tribal Sovereignty in Traditional Property Law Terms, 19 S. Ill. L.J. 593, 601 (1995).

[9] Todd Miller, Comment, Easements on Tribal Sovereignty, 26 Am. Indian L. Rev. 105, 105 (2001). Rights-of-way easements encompass “highways, railroads, electric transmission lines, oil and gas pipelines, and various communication facilities.” Id.

[10] See Daniel W. Hester, Protection of Sacred Sites and Cultural Resources: An Obstacle
to Development in Indian Country?
, 23A Rocky Mtn. Min. L. Inst. 11 (1989) (noting that development of the Powder River region would impact the Norther Cheyenne Tribe).

[11] James M. Grijalva, Control and Accountability: The Twin Dimensions of Tribal Sovereignty Necessary to Achieve Environmental Justice for Native America, in Tribes, Land, and the Environment 30 (Sarah Krakoff & Ezra Rosser eds., 2012).

[12] See Miller, supra note 9, at 130 (identifying the need for more energy easements across tribal land to satisfy the demand for more transmission capacity).

[13] See Rights-of-Way on Indian Lands, 80 Fed. Reg. 72,492, 72,492 (Nov. 19, 2015) (to be codified at 25 C.F.R. pt. 169) (noting the absence of environmental considerations, despite the streamlined process). See also 25 C.F.R. § 169.3 (2016) (giving the Secretary authority to grant right-of-way permits).

[14] Jeff D. Makholm, The Political Economy of Pipelines: A Century of Comparative Institutional Development 175 (2012).

[15] Id. at 176.

[16] Sisseton-Wahpeton Oyate v. U.S. Dep’t of State, 659 F. Supp. 2d 1071, 1079 (D.S.D. 2009).

[17] White Earth Nation v. Kerry, No. 14-4726 (MJD/LIB), 2015 WL 8483278, at *1 (D. Minn. Dec. 9, 2015).

[18] The rights-of-way revisions include: (1) “Eliminating the need to obtain BIA consent for surveying in preparation for applying for a right-of-way”; (2) “Establishing timelines for BIA review of rights-of-way requests”; “Clarifying processes for BIA review of right-of-way documents”; (4) “[A]llowing BIA disapproval only where there is a stated compelling reason”; (5) “[P]roviding greater deference to Tribes on decisions affecting lands”; (6) Clarifying the authority by which BIA approves rights-of-way; and (7) “[E]liminating outdated requirements that apply to specific different types of rights-of-way.” Rights-of-Way on Indian Lands, 80 Fed. Reg. 72,492, 72,492 (Nov. 19, 2015) (to be codified at 25 C.F.R. pt. 169).

Turner, Thornburgh, and an Inmate’s Right to Read: The Chelsea Manning Case and Possible Solutions to BOP and USDB Regulation Language

Al M. Dean

The United States Army Military District of Washington convicted Chelsea Manning of contravening provisions of the federal Espionage Act[1] in 2010 after Manning released classified military and diplomatic documents to WikiLeaks.[2] While some commentators describe “the largest dump of classified information in American history” as dangerous and severely treasonous,[3] others applaud Manning’s support of government transparency, prison reform, and transgender equality.[4] Incarcerated in a maximum-security prison, Manning faced solitary confinement for keeping prohibited publications in her cell without filing a book request.[5] Despite being commuted by President Obama in January 2017,[6] the case represents a recent concern lodged at both the United States Disciplinary Barracks (USDB) rules and the Bureau of Prisons (BOP) regulations. The concern is the ambiguity of how prison administrators may accept or deny book requests on a case-by-case basis.

Of particular interest is 28 C.F.R. § 540.71, which governs how BOP wardens review individual book requests.[7] The provision gives prison officials the subjective freedom to determine which materials to ban from federal inmates, resulting in inconsistencies throughout the federal prison system.[8] Some correctional facilities keep relaxed systems that only meet the minimum requirements of § 540.71, while others refuse “to allow any books whose content includes anything legal, medical or contains violence.”[9] Affording prison officials the freedom to decide which materials to ban from federal inmates creates inconsistencies in the interpretation of § 540.71 throughout the federal prison system. This has a significant effect on the level of First Amendment protection afforded from institution to institution, and hampers judicial guidance to administrators.

The Supreme Court keeps a doctrine of deference toward incoming publications as a First Amendment issue.[10] Holdings maintain that prison administrators are in the best position to assess the reasonability of correspondence and book requests.[11] Approvals of these requests are largely left to the discretion of the warden, allowing individual prisons to craft their own policies within the confines of BOP and USDB regulations.[12] Institutional rules are flexible depending on individual prisoner, sentence, or behavior. The current standard from Turner v. Safely and Thornburgh v. Abbott requires regulations that bar the receipt of written materials to be reasonably related to legitimate security interests.[13] The current BOP framework allows wardens to deny a request if it is “determined detrimental to the security, good order, or discipline of the institution or if it might facilitate criminal activity.”[14] While the USDB—where Manning was incarcerated—is a military prison in Fort Leavenworth, Kansas, outside the strict purview of the BOP, the USDB contains essentially the same language as part of the Military Correctional Complex Regulations.[15] This gives prison officials the subjective freedom to determine which materials to ban from federal inmates, resulting in inconsistencies throughout the federal prison system.

This Note sheds light on the constitutional and enforcement implications of current BOP regulations on book requests for federal inmates, and it proposes an alternative to these regulations based on a federally recognized banned publication list. It will examine the existing precedent surrounding the deference given to prison officials (the “hands-off” approach), and the historical trend toward this doctrine.[16] Part I outlines the regulatory and case law histories alongside the treatment of book request rules over the past several decades. It will detail the constitutional tests used in First Amendment challenges. Part II will state the primary issues, including the lack of guidance given to wardens and the public, the arbitrary categorization of publications, and the unequal application between inmates of the same status. Part III proposes new wording to the BOP rules and the creation of a national banned book registry for federal correctional facilities. A detailed list can provide guidance, thereby evenly establishing the evidentiary burden on federal prison officials throughout the U.S. Part IV will demonstrate the public policy benefits of these changes to inmates, wardens, the public at large, and the interests of fairness and justice.

A guided, analytical approach to prison publication requests would eliminate the pressure placed on wardens and inmates to know what constitutes objectionable material. Education and open access to information in the prison system can encourage self-improvement and reduce recidivism. Lower courts will be equipped with the sense of direction necessary to rule on delicate constitutional questions. By creating a level playing field between prison policies, sentences for the same crime are served equally regardless of facility.

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[1] Espionage Act of June 15, 1917, Pub. L. No. 24, ch. 30, 40 Stat. 217 (1917) (codified at 18 U.S.C. §§ 792–99 (2012)) (“An Act To punish acts of interference with the foreign relations, the neutrality, and the foreign commerce of the United States, to punish espionage, and better to enforce the criminal laws of the United States, and for other purposes.”).

[2] Julie Tate, Bradley Manning Sentenced to 35 Years in WikiLeaks Case, Wash. Post (Aug. 21, 2013), http://wapo.st/19IK4tA.

[3] See, e.g., James Kirchick, Bradley Manning Gets Off Easy, N.Y. Daily News (July 30, 2013), http://www.nydailynews.com/opinion/manning-easy-article-1.1413222 (Kirchick compares Manning to NSA whistleblower Edward Snowden, arguing that the conviction sends “a clear message to any soldier or government employee . . . thinking of arrogating to himself the power to determine what information the world has a ‘right to know.’”).

[4] Chase Strangio, Op-Ed: Chelsea Manning’s Plight Highlights Trans Prison Abuses, Advocate (Aug. 24, 2015), http://www.advocate.com/commentary/2015/08/24/op-ed-chelsea-mannings-plight-highlights-trans-prison-abuses. Strangio, a Staff Attorney at the American Civil Liberties Union, is Manning’s lawyer and a transgender advocate for prison reform. Denise Hassanzade Ajiri, Attorney Credits Public with Sparing Chelsea Manning Solitary Confinement (+video), Christian Sci. Monitor (Aug. 19, 2015), http://www.csmonitor.com/USA/Justice/
2015/0819/Attorney-credits-public-with-sparing-Chelsea-Manning-solitary-confinement-video; Chase Strangio, Am. Civil Liberties Union, https://www.aclu.org/bio/chase-strangio (last visited May 3, 2017).

[5] Marina Koren, The Books that Prison Officials Don’t Want Chelsea Manning to Read, The Atlantic (Aug. 19, 2015), http://www.theatlantic.com/national/archive/2015/08/chelsea-manning-books-reading-prison/401801.

[6] Charlie Savage, Chelsea Manning to Be Released Early as Obama Commutes Sentence, N.Y. Times (Jan. 17, 2017), https://www.nytimes.com/2017/01/17/us/politics/obama-commutes-bulk-of-chelsea-mannings-sentence.html?_r=0.

[7] William Mark Roth, Turner v. Safley: The Supreme Court Further Confuses Prisoners’ Constitutional Rights, 22 Loy. L.A. L. Rev. 667, 668–69 (1989) (noting that lower courts have leeway to manipulate the distinction between prisoners and non-prisoners as a First Amendment issue). The highest-ranking administrator of the USDB is not the “Warden,” but the 15th Military Police Brigade Commander (the “Commandant”), who serves under the direction of the Provost Marshal General of the Army Corrections Command in Washington, D.C. Jennifer Walleman, 15th MP Bde. Welcomes New Commander, Fort Leavenworth Lamp (Jul. 31, 2014), http://www.ftleavenworthlamp.com/article/
20140731/News/140739878. For the purposes of this Note, the Commandant will be included within the general term “warden” used by the BOP.

[8] Roth, supra note 7, at 670.

[9] Andrew Losowsky, Prison Books Ban: The Censorship Scandal Inside America’s Jails, Huffington Post (Oct. 3, 2011), http://www.huffingtonpost.com/2011/10/02/prison-books-ban_n_991494.html; see also Tex. Civil Rights Project, Banned Books in the Texas Prison System: How the Texas Department of Criminal Justice Censors Books Sent to Prisoners 52 (2011), https://www.texascivilrightsproject.org/en/wp-content/uploads/2016/04/TCRP_Prison_Books
_Report.pdf (explaining that Texas censors books with content relating to prison conditions and noting that there is “no legitimate reason” prisoners should not be able to read books about prison conditions).

[10] Turner v. Safley, 482 U.S. 78, 85 (1987) (Writing for the majority, Justice O’Connor describes prison administration as “a task that has been committed to the responsibility of [the executive and legislative] branches, and separation of powers concerns counsel a policy of judicial restraint.”).

[11] Id. at 89 (arguing that subjecting administrators to strict scrutiny under the First Amendment “would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration”).

[12] Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 128 (1977) (“The necessary and correct result of our deference to the informed discretion of prison administrators permits them, and not the courts, to make the difficult judgments concerning institutional operations . . . .”).

[13] Turner, 482 U.S. at 78; Thornburgh v. Abbott, 490 U.S. 401, 401 (1989).

[14] 28 C.F.R. § 540.71(b) (2016).

[15] Diamond v. Grey, 2012 WL 1415527, at *3 (rejection of inmate mail or publications, “either incoming or outgoing, on the basis of content, is authorized only when it is determined to be detrimental to the safety, security, and good order or discipline of the USDB . . .”) (quoting U.S. Disciplinary Barracks Regulation 28-1(c), previously amended and renamed as Military Correctional Complex Regulation 28-1(c) (2011)).

[16] See infra note 31 (examining the relationship between judicial application of the hands-off doctrine and the number of constitutional challenges brought in federal court).

Historic Housing for All: Historic Preservation as the New Inclusionary Zoning

Elizabeth M. Tisher

When Americans celebrated the 100th anniversary of Jane Jacobs’s birth this year, they reflected on her tireless advocacy for vibrant, diverse cities in the face of widespread urban renewal.[1] Jacobs championed an animated streetscape of unique buildings, old and new; an eclectic array of merchants; and colorful, if chaotic, sidewalk activity—essentially “an oasis with an irresistible sense of intimacy, cheerfulness, and spontaneity.”[2] Although urban renewal cut a path of destruction through the heart of many cities during the mid-twentieth century, Jacobs’s ideas lived on to shape the historic preservation movement and many other progressive policies that have influenced modern planning.[3]

But Jacobs’s fight is far from over. Ironically, the renewed interest in urban living—and urban pioneering—that was sparked by her theories has reignited the same tensions that divided Jacobs and her contemporaries back in the 1950s: preservation versus demolition, old versus new, rich versus poor.[4] At the core of these tensions is an affordable housing crisis. Consequently, the strides Jacobs made and the polices she advanced—particularly historic preservation—are being criticized by housing advocates as obstructing affordable housing development.[5]

Thus, on Jacobs’s 100th birthday, the question on the minds of many was: on which side of the affordable housing debate would Jacobs fall?[6] Would she side with affordable housing development or the preservation of historic districts?[7] It is impossible to answer this question, and not just because Jacobs is no longer around to opine on the issue, but because it is the wrong question. We should be asking: how can historic preservation be used to further affordable housing goals?

The main argument from housing advocates is twofold: that the only way to create enough affordable housing to meet the demand is to build as much housing as possible, and that historic districts prevent development, thereby obstructing affordable housing growth.[8] This Article proposes that historic preservation is not the problem and that preservation is a necessary tool for creating and maintaining quality, affordable housing.

Part I of this Article provides a background on the tension between historic preservation and affordable housing, and lays out the argument against historic preservation. Part II examines the flawed assumptions on which the argument is premised, and explains why preservation is not the problem. Part III illustrates how historic preservation can, in fact, further affordable housing goals. Finally, Part IV explores ways in which historic preservation laws and policies can be strengthened to create more higher-quality affordable housing, while at the same time encouraging preservation.

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[1] See, e.g., Roberta Brandes Gratz, The Jane Jacobs Century, CityLab (May 4, 2016), http://www.citylab.com/design/2016/05/happy-100th-birthday-jane-jacobs/481035 (reflecting on Jane Jacobs’s lasting impacts on urban culture and planning).

[2] Jane Jacobs, Downtown is for People, Fortune (Sept. 18, 2011), http://fortune.com/2011/09/18/downtown-is-for-people-fortune-classic-1958/.

[3] See Libby Nelson, Jane Jacobs Believed Cities Should Be Fun—and Changed Urban Planning Forever, Vox (May 4, 2016 4:30 PM), http://www.vox.com/2016/5/4/11583342/jane-jacobs-100th-birthday (“Jacobs argued [that urban renewal] ignored everything that made cities great: the mixture of shops, offices, and housing that brought people together to live their lives. And her vision triumphed.”).

[4] See Peter Moskowitz, Bulldoze Jane Jacobs, Slate (May 4, 2016), http://www.slate.com/articles/business/metropolis/2016/05/happy_100th_birthday_jane_jacobs_it_s_time_to_stop_deifying_you.html (arguing that Jacobs’s vision of urbanism had shortcomings that today are being realized, as once-diverse neighborhoods have become “all-white, aesthetically suburban playground[s] for the rich”).

[5] See, e.g., Conor Dougherty, In Cramped and Costly Bay Area, Cries to Build, Baby, Build, N.Y. Times (Apr. 16, 2016), https://nyti.ms/2kmANOG (reporting on a pro-development renters group in San Francisco, the SF Bay Area Renters’ Federation, or SFBARF, which argues that the city needs as much new development as possible, no matter the consequences). “You have to support building, even when it’s a type of building you hate,” said the head of SFBARF. Id.; see also Gabriel Metcalf, What’s the Matter with San Francisco?, CityLab (July 23, 2015), http://www.citylab.com/housing/2015/07/whats-the-matter-with-san-francisco/399506/?utm_source=SFFB (explaining that progressive policies developed to respond to blight and urban disinvestment during the twentieth century are not effective in dealing with modern-day problems of rapid population growth and high housing costs).

[6] Kriston Capps, Whose Side in the Housing Wars Would Jane Jacobs Take Up Today?, CityLab (May 4, 2016), http://www.citylab.com/work/2016/05/would-jane-jacobs-be-a-nimby-or-yimby-bob-dylan/481269.

[7] Id.

[8] See Dougherty, supra note 6 (discussing the tension between Bay Area progressives that pits preservation of the City’s historic beatnik charm against the accommodation of affordable housing through increased construction); Edward L. Glaeser, Preservation Follies: Excessive Landmarking Threatens to Make Manhattan a Refuge for the Rich, City J. (Spring 2010), http://www.city-journal.org/html/preservation-follies-13279.html (arguing that historic district restrictions on new construction reduce housing supply and drive up real estate costs, “mak[ing] those districts exclusive enclaves of the well-to-do, educated, and white”); Kriston Capps, Why Historic Preservation Districts Should Be a Thing of the Past, CityLab (Jan. 29, 2016), http://www.citylab.com/housing/2016/01/why-historic-preservation-districts-should-be-a-thing-of-the-past/431598 (arguing that historic districting is “protectionist single-family zoning” that “thwart[s]” access to desirable neighborhoods); Matthew Yglesias, Legalize Skyscrapers, Slate (Apr. 18, 2012 4:26 PM), http://www.slate.com/articles/business/moneybox/2012/04/d_c_s_height_restrictions_on_buildings_are_hurting_america_.html (arguing that affordability problem in D.C. “could be ameliorated” by removing height restrictions and building taller).

Fewer Hands, More Mercy: A Plea For a Better Federal Clemency System

Mark Osler

There is a broad consensus in the United States that we incarcerate too many people for non-violent narcotics crimes.[1] One way to address that issue, at least within the federal system, is through the use of federal clemency.[2] While President Obama used the Pardon Power in a significant way to grant commutations to 1,715 prisoners,[3] he accomplished this in spite of an archaic, bureaucratic review process that limited his results. To use the Pardon Power consistently and effectively, Obama’s successors must reform the process of consideration.

For centuries, the United States maintained a relatively simple system for the review of federal clemency petitions.[4] That changed in the 1980s, and we now have 7 to 12 levels of review[5] to arrive at the same decision: whether to grant or deny a petition for clemency. Since that shift towards complexity, grant rates have plunged,[6] and the Pardon Power has largely either been ignored or a source of political scandal.[7] While President Obama cranked this archaic machine faster, he did not replace it.[8] To fix the problem, we need to restore simplicity to this essential mechanism of mercy created by the Constitution.[9] This article sets out why reform is necessary in the face of an unproductive bureaucracy, and how that reform should be structured.

Our greatest president[10] had the simplest approach of all: Abraham Lincoln met personally with those seeking clemency on behalf of themselves or others.[11] Job Smith’s father, for example, waited in tears in Lincoln’s anteroom.[12] His son had been court-martialed and sentenced to die. When the old man told Lincoln about his son, Lincoln’s face reflected a “cloud of sorrow” according to a witness.[13] There was a complication to clemency, though. The condemned soldier served in General B.F. Butler’s Army of the James, and Butler had just sent Lincoln a note imploring him “not to interfere with the courts-martial of the army.”[14] In the end, contrary to the General’s request and in the presence of the soldier’s father, Lincoln spared Job Smith’s life.[15]

Contrast that with the process a prisoner faced when seeking clemency from President Obama in 2016. The process had changed in a century and a half. A prisoner’s father would not get to chat with the president, of course; that one degree of separation between the president and Job Smith’s father has blossomed into no less than 12 discrete, successive reviews by people with different interests, values, and filters from one another.[16]

A typical non-violent narcotics prisoner in 2016 likely would have filed his clemency petition through the Clemency Project 2014,[17] a special program established by the Obama Administration and five
outside organizations.[18] The Clemency Project 2014 was directed towards petitioners who met certain criteria.[19] Here is a lightning-round synopsis of the harrowing review process one of those cases was subjected to as it coursed through that Clemency Project and then the Administration’s review process, with each step in succession. It was:

  • (1) Screened by a Clemency Project staffer;
  • (2) Sent to a lawyer for examination and summary;
  • (3) Reviewed by a committee of three;
  • (4) Revised, then reviewed, by a committee of five;
  • (5) Returned to the lawyer, then returned to and reviewed by the Clemency Project as a petition;
  • (6) Submitted to the staff of the pardon attorney, and then reviewed by that staff;
  • (7) Reviewed by the Pardon Attorney;
  • (8) Reviewed by the staff of the Deputy Attorney General;
  • (9) Reviewed by the Deputy Attorney General;
  • (10) Reviewed by the staff of the White House Counsel;
  • (11) Reviewed by the White House Counsel;
  • (12) And then, only then, sent the President for consideration.[20]

Job Smith’s father was told on the spot that President Lincoln was sparing his son’s life. We cannot expect a president today to meet each clemency applicant personally.[21] Still, we can make the system more effective, fair, and efficient by removing at least some of these levels of bureaucracy. [22] This article will examine the problem, look to examples in the states and prior administrations, and describe two options for a new and thorough—yet efficient—clemency process.

Part II recounts how we got into this swamp, then describes the process under the Obama Administration, summarized above. It is a story that involves a dizzying array of players with very different backgrounds and tasks. Importantly, many of those charged with analyzing clemency cases are generalists; they have many and sometimes conflicting tasks other than the review of petitions for clemency.

Part III examines a few of the higher-functioning state processes for clemency and looks for commonalities. A prior federal effort also warrants discussion—President Ford’s Presidential Clemency Board, which granted pardons to thousands of draft evaders and wartime deserters.[23]

Finally, Part IV describes a model for a new federal clemency process based on the high-functioning systems already described. President Ford’s clemency board and the structure used by productive state systems share certain key elements—most importantly, the use of a board that has some degree of independence in making its determinations.

We live in an era where bureaucracy is in the decline. Microsoft, with 6 to 12 layers of bureaucracy, has lost much of its business to a flatter-structured upstart, Google.[24] Analysts like Gary Hamel have concluded that “[t]here’s no other way to put it: bureaucracy must die. We must find a way to reap the blessings of bureaucracy—precision, consistency, and predictability—while at the same time killing it. Bureaucracy, both architecturally and ideologically, is incompatible with the demands of the 21st century.”[25]

The complex bureaucracy we have in place to evaluate clemency is not just a bad system by modern standards. It is a corruption of the intent of those who wrote the United States Constitution. Alexander Hamilton argued that “[h]umanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.”[26] Our machine of mercy and justice is unduly fettered, and it is we who should be embarrassed.

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[1] Erik Eckholm, Cutting the Federal Prison Population Will Be Hard. Here’s Why, N.Y. Times (Oct. 26, 2015), https://www.nytimes.com/2015/10/28/upshot/cutting-federal-prison-population-will-be-hard-heres-why.html. Eckholm points out that there is much less of a consensus around lowering sentences for those convicted of violent crimes. Id.

[2] The vast majority of prisoners, of course, are held in state prisons. Id. Each state system has its own clemency process, though these vary wildly in efficacy. For a good examination of state clemency processes, see Margaret Colgate Love, Reinvigorating the Federal Pardon Process: What the President Can Learn from the States, 9 U. St. Thomas L.J. 730, 731 (2012) [hereinafter Love, Reinvigorating the Federal Pardon Process]. See also id. at 732, 744 (suggesting ways to restore presidential pardoning in the federal justice system).

[3] Sari Horwitz, Obama Grants Final 330 Commutations to Nonviolent Drug Offenders, Wash. Post (Jan. 19, 2017), https://www.washingtonpost.com/world/national-security/obama-grants-final-330-commutations-to-nonviolent-drug-offenders/2017/01/19/41506468-de5d-11e6-918c-99ede3c8cafa_story.html?utm_term=.bb3dd765bf57.

[4] See infra Part II.A (detailing the evolution of the America’s federal clemency program).

[5] See infra Part II.B (explaining the current United States federal clemency program).

[6] Clemency Statistics, Office of the U.S. Pardon Attorney, https://www.justice.gov/pardon/clemency-statistics (last updated Feb. 7, 2017).

[7] Jeffrey Crouch, The Presidential Pardon Power 146 (Univ. Press of Kan., 2009).

[8] President Obama’s grants of commutation (shortening of a sentence) were historically significant, but only came after more than seven years of frustration, and through largely ignoring pardons (which restore rights after a sentence has been served). Clemency Statistics, supra note 6.

[9] U.S. Const. art. II, § 2.

[10] Id. Any judgment of a president’s value is necessarily subjective. Lincoln was ranked best in a recent poll of the American Political Science Association’s “Presidents and Executive Politics” section. Brandon Rottinghaus & Justin Vaughn, New Ranking of U.S. Presidents Puts Lincoln at No. 1, Obama at 18; Kennedy Judged Most Overrated, Wash. Post (Feb. 16, 2015), https://www.washingtonpost.com/blogs/monkey-cage/wp/2015/02/16/new-ranking-of-u-s-presidents-puts-lincoln-1-obama-18-kennedy-judged-most-over-rated.

[11] Margaret Colgate Love, The Twilight of the Pardon Power, 100 J. Crim. L. & Criminology 1169, 1177–78 (2010) [hereinafter Love, The Twilight of the Pardon Power].

[12] Schuyler Colfax, Leg Cases, in Meeting Mr. Lincoln: Firsthand Recollection of Abraham Lincoln by People, Great and Small, Who Met the President 81, 83 (Victoria Radford ed., 1998).

[13] Id.

[14] Id.

[15] Id.

[16] See infra Part II.B (discussing America’s federal clemency program, including the 12-step petition review process).

[17] Disclosure: The author, through the Federal Clemency Clinic at the University of St. Thomas, filed clemency petitions for several prisoners.

[18] Sari Horwitz, Justice Department Outlines Criteria for Clemency to Nonviolent Prison Inmates, Wash. Post (Apr. 23, 2014), https://www.washingtonpost.com/world/national-security/justice-department-outlines-criteria-forclemency-to-nonviolent-prison-inmates/2014/04/23/1c5e9932-cad7-11e3-95f7-7ecdde72d2ea_story.html.

[19] Those criteria were:

  • (1) Defendant would have received a substantially lower sentence today;
  • (2) The offense was non-violent;
  • (3) Defendant was a low-level offender;
  • (4) Defendant has no significant ties to large-scale criminal organizations, gangs, or cartels;
  • (5) Defendant has served at least ten years in prison;
  • (6) Defendant has no significant criminal history;
  • (7) Defendant has demonstrated good conduct in prison; and
  • (8) Defendant has no history of violence prior to or during his or her term of incarceration.

In some iterations, the second, third, and fourth criteria were conflated, and “six” criteria were listed. See Pocket Guide to the Clemency Project 2014 Process (with Checklist) 8–11, https://www.stthomas.edu/media/interprofessionalcenter/PocketGuidev3.pdf (last updated July 13, 2015) (listing criteria required by the Department of Justice).

[20] Mark Osler, Clementia, Obama, and Deborah Leff, 28 Fed. Sent’g Rep. 309, 309–10 (2016).

[21] Id. In fact, that did not even work very well for Lincoln. His staff eventually learned that they had to control access to the President so that important work could be done. Love, The Twilight of the Pardon Power, supra note 11, at 1177 (commenting on the importance of ensuring that President Lincoln met only the “most deserving” clemency cases).

[22] The current system has produced some shockingly unfair outcomes, including remarkable racial disparities. A ProPublica analysis of George W. Bush’s clemency record found that, “[a]ll of the drug offenders forgiven during the Bush administration at the pardon attorney’s recommendation — 34 of them — were white.” Dafna Linzer & Jennifer LaFleur, ProPublica Review of Pardons in Past Decade Shows Process Heavily Favored Whites, Wash. Post (Dec. 3, 2011), https://www.washingtonpost.com/investigations/propublica-review-of-pardons-in-past-decade-shows-process-heavily-favored-whites/2011/11/23/gIQAElnVQO_story.html.

[23] See infra Part III.B–C (explaining the work of President Ford’s Clemency Board).

[24] Karl Moore & Kyle Hill, The Decline but Not Fall of Hierarchy — What Young People Really Want, Forbes (June 14, 2011, 2:24 PM), http://www.forbes.com/sites/karlmoore/2011/06/14/the-decline-but-not-fall-of-hierarchy-what-young-people-really-want/#3500668c3463.

[25] Gary Hamel, Bureaucracy Must Die, Harv. Bus. Rev. (Nov. 4, 2014), https://hbr.org/2014/11/bureaucracy-must-die.

[26] The Federalist No. 74 (Alexander Hamilton).

“What Kind of a Mad Prosecutor” Brought Us This White Collar Case

Ellen S. Podgor

Throughout history, there has been a long line of cases where prosecutors have attempted to stretch statutes to cover conduct that they consider criminal.[1] Clearly, prosecutors have enormous discretion to pick and choose whom to charge, what to charge,[2] when to charge,[3] and whether to proceed against individuals or entities.[4] Likewise, prosecutors decide who will receive immunity,[5] who will get a plea benefit,[6] and whether a pending case will be dismissed.[7]

Although prosecutors do not have “unfettered” discretion,[8] there are very few restrictions on their discretionary power.[9] It is not prohibited for prosecutors to act arbitrarily,[10] and few defendants have succeeded in the dismissal of an indictment absent a showing that the alleged conduct did not match the crime charged or was a result of vindictive action.[11]

This Essay examines prosecutorial discretion that stretches statutes beyond statutory language, congressional intent, or policy. Although cases of prosecutorial stretching occur throughout the context of criminal law, this piece focuses on the stretching of statutes in the white collar context.

In the past, stretching of statutes or creative prosecutions was sometimes justified with claims that existing statutes did not cover the misconduct.[12] For example, prior to the passage in 1970 of the Racketeered Influenced Corrupt Organization Act (RICO),[13] individuals engaged in organized crime were commonly indicted and convicted for tax crimes.[14] Likewise, prior to the passage of the Computer Fraud and Abuse Act,[15] prosecutors used the National Stolen Property Act[16] and Wire Fraud[17] statutes to proceed against computer misconduct.[18] But the growth of criminal statutes makes looking beyond the explicit language of the legislation less warranted.[19]

This Essay looks at three areas of white collar crime that have seen prosecutorial statute stretching: fraud,[20] obstruction-of-justice,[21] and bribery.[22] Within each of these areas, there are many examples of both historical and recent cases requiring judicial oversight to halt prosecutorial practices.[23] This Essay concludes by noting that prosecutors who stretch statutes do a disservice to our judicial system. It is important to strictly construe white collar statutes to assure that criminal conduct is recognized and conformity with the law is promoted.[24]

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[1] See, e.g., Cleveland v. United States, 531 U.S. 12, 15, 27 (2000) (addressing prosecution under the mail fraud statute for an alleged false statement on a video poker machine license application); McDonnell v. United States, 136 S. Ct. 2355, 2361, 2370, 2372 (2016) (declining the prosecutor’s “expansive interpretation” of an “official act”); United States v. Czubinski, 106 F.3d 1069, 1071, 1076 (1st Cir. 1997) (finding that prosecution for browsing files containing tax information does not meet the elements of wire fraud).

[2] See United States v. Batchelder, 442 U.S. 114, 123–26 (1979) (discussing the broad prosecutorial power to select charges).

[3] See United States v. Mandujano, 425 U.S. 564, 595 (1976) (discussing prosecutorial authority in when to bring criminal charges).

[4] See, e.g., Ellen Podgor, The Ethics and Professionalism of Prosecutors in Discretionary Decisions, 68 Fordham L. Rev. 1511, 1531 (2000) (discussing prosecutorial discretion and the need for ethical decision-making); James Vorenberg, Decent Restraint of Prosecutorial Power, 94 Harv. L. Rev. 1521, 1523–37 (1981) (discussing the breadth of prosecutorial discretion).

[5] See Robert L. Misner, Recasting Prosecutorial Discretion, 86 J. Crim. L. & Criminology 717, 741 (1996) (discussing decisions within prosecutorial discretion, including immunity grants).

[6] See Darryl K. Brown, Judicial Power to Regulate Plea Bargaining, 57 Wm. & Mary L. Rev. 1225, 1272 (2016) (discussing the breadth of prosecutorial discretion).

[7] See, e.g., Best v. City of Portland, 554 F.3d 698, 702 (7th Cir. 2009) (“[U]nder Indiana law, a prosecutor may voluntarily dismiss an indictment or information before trial for any reason and without court approval.”). Prosecutors also have discretion with respect to many related decisions, such as whether to give a defendant a 5K1.1 motion for substantial assistance, a motion that can reduce the sentence. Julie Gyurci, Note, Prosecutorial Discretion to Bring a Substantial Assistance Motion Pursuant to a Plea Agreement: Enforcing a Good Faith Standard, 78 Minn. L. Rev. 1253, 1260 (1994) (discussing the discretion afforded to prosecutors in filing a motion that serves as an exception to the legislative restrictions of mandatory-minimum sentences).

[8] Wayte v. United States, 470 U.S. 598, 608 (1985) (“[A]lthough prosecutorial discretion is broad, it is not ‘unfettered.’”) (quoting United States v. Batchelder, 442 U.S. 114, 125 (1979)).

[9] Prosecutorial discretion is limited by the use of improper factors. See United States v. LaBonte, 520 U.S. 751, 762 (1997) (“[D]iscretion is an integral feature of the criminal justice system, and is appropriate, so long as it is not based upon improper factors.”). Additionally, there are ethical restrictions that apply to prosecutorial decision-making. See Model Rules of Prof’l Conduct r. 3.8 (Am. Bar Ass’n 2016) (stating that prosecutors shall “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause”). See Standards for Criminal Justice Prosecution Function and Defense Function § 3-3.9 (Am. Bar Ass’n 1993), for more extensive guidance.

[10] United States v. Armstrong, 517 U.S. 456, 465 (1996) (citing Wayte, 598 U.S. at 608).

[11] The Supreme Court has held that there is no presumption of vindictiveness. United States v. Goodwin, 457 U.S. 368, 384 (1982). In United States v. Armstrong, the Supreme Court held that “[i]n order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present ‘clear evidence to the contrary.’” Armstrong, 517 U.S. at 465 (quoting United States v. Chem. Found., 272 U.S. 1, 14–15 (1926)).

[12] See, e.g., Tod H. Flaming, Comment, The National Stolen Property Act and Computer Files: A New Form of Property, a New Form of Theft, 1993 U. Chi. L. Sch. Roundtable 255, 256, 290 (1993) (discussing Dowling v. United States, 473 U.S. 207 (1985), and noting the confusion lower courts faced in addressing stolen computer files under the National Stolen Property Act).

[13] 18 U.S.C. §§ 1961–1968 (2012).

[14] Daniel C. Richman & William J. Stuntz, Al Capone’s Revenge: An Essay on the Political Economy of Pretextual Prosecution, 105 Colum. L. Rev. 583, 630 (2005) (prosecuting individuals for lesser charges than the conduct warrants).

[15] 18 U.S.C. § 1030 (2012).

[16] 18 U.S.C. §§ 2311, 2314–2315 (2012).

[17] 18 U.S.C. § 1343 (2012).

[18] See Flaming, supra note 13, at 255 (discussing the difficulty of charging computer crimes under the National Stolen Property Act). Both of these statutes continue to be used by prosecutors when charging computer misconduct. See, e.g., United States v. Agrawal, 726 F.3d 235, 237 (2d Cir. 2013) (discussing charges brought under the Economic Espionage Act and the National Stolen Property Act); United States v. Aleynikov, 676 F.3d 71, 74–75 (2d Cir. 2012) (rejecting charges brought under the Economic Espionage Act, National Stolen Property Act, and the Computer Fraud and Abuse Act); United States v. Czubinski, 106 F.3d 1069, 1071 (1st Cir. 1997) (discussing wire fraud and computer fraud charges brought under 18 U.S.C. §§ 1343, 1346, and 18 U.S.C. § 1030(a)(4)).

[19] See Brian W. Walsh & Tiffany M. Joslyn, Heritage Found. & Nat’l Ass’n of Criminal Def. Lawyers, Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law 6 (2010), http://s3.amazonaws.com/thf_media/2010/pdf/WithoutIntent_lo-res.pdf (discussing an estimated 4,450 criminal statutes by the end of 2007); Jim E. Levine, From the President: Faces of Overcriminalization, Champion, Nov. 2010, at 1, 5 (noting that there are an estimated 4,450 federal crimes and “quite possibly as many as 300,000 federal regulations that can be enforced criminally”); John S. Baker, Jr., Jurisdictional and Separation of Powers Strategies to Limit the Expansion of Federal Crimes, 54 Am. U. L. Rev. 545, 547 (2005) (discussing how to limit the expansion of federal criminal law); William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 512 (2001) (“Criminal law is both broad and deep: a great deal of conduct is criminalized, and of that conduct, a large proportion is criminalized many times over.”).

[20] Although the focus here is on the mail and wire fraud statutes, 18 U.S.C. §§ 1341–1342, it is recognized that many of the fraud statutes that exist in the federal criminal code are modeled after these two statutes. See, e.g., 18 U.S.C. § 1344 (bank fraud statute).

[21] Although there are many obstruction-of-justice statutes in the United States Code, a more recent statute is selected here, 18 U.S.C. § 1519 (2012), to demonstrate prosecutorial statutory stretching.

[22] There are many bribery statutes in the United States Code. The focus here is on 18 U.S.C. § 201 (2012).

[23] Prosecutorial statutory stretching is not limited to these white collar areas, nor are all cases of prosecutorial stretching rejected by the courts. See, e.g., United States v. McNab, 331 F.3d 1228, 1247 (11th Cir. 2003) (affirming a conviction under the Lacey Act for an alleged violation of Honduran law); id. (Fay, J., dissenting) (pointing out that the Honduran government found the alleged violation to be “null and void”).

[24] This Essay is not exclusively focused on the Rule of Lenity, which “requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.” United States v. Santos, 553 U.S. 507, 514 (2008). Rather, the focus is on the prosecutor who stretches a statute to fit alleged misconduct that is not encompassed within the law, intent, or the policy rationale for it being part of the criminal code.

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