Wednesday, September 6, 2017

What's Next For DACA?

The next six months in the Congress will be crucial to get the 800,000 DREAMers a legislative solution.

I think what this country needs is a solution to the random pickings of people in political office who stop - or try to stop - national programs before there is an alternative or before making grand slams into individual civil rights, leaving only harm to groups of people in these UNITED States of America.

Let's honor our differences by respecting and protecting them.

Betsy Combier
President and Founder, ADVOCATZ
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Sens. Lindsey Graham, R-S.C., and Dick Durbin, D-Ill., spoke about their Dream Act to help protect DACA recipients at a press conference on Tuesday.

NPR Radio

September 6, 20175:00 AM ET

With President Trump's announcement on Tuesday that his administration was ending the Deferred Action for Childhood Arrivals program (DACA), the White House made clear they want a legislative solution from Congress to protect the roughly 800,000 "DREAMers," who came to the U.S. illegally as children and now face the possibility of deportation.

There are several pending bills in Congress, spearheaded by both Republicans and Democrats, that could gain more steam now that Trump has made the decision to disband the program in six months. DACA was first implemented by President Obama in a 2012 executive after Congress failed to pass comprehensive immigration reform or a bill that would have provided protections to immigrants who came here illegally as children, through no fault of their own, and who have no criminal record.

While Congress could pass a standalone bill to just address DACA, White House press secretary Sarah Huckabee Sanders hinted in her briefing on Tuesday that Trump wanted "comprehensive reform" and dodged on whether Trump would sign a bill just addressed at DREAMers.

In a tweet later Tuesday, Trump seemed to signal he wanted broad immigration reform and didn't single out DACA specifically.

"I have a love for these people and hopefully now Congress will be able to help them and do it properly, and I can tell you, speaking to members of Congress, they want to be able to do something and do it right," Trump had told reporters just hours earlier. "And really we have no choice, we have to be able to do something, and I think it's going to work out very well, and long-term it's going to be the right solution."

He later left open a chance that he could reconsider the wind-down if legislators reach an impasse.

If Congress wants to act to help DREAMers before their protections expire, there are several bills pending that could do the job — all of which could gain steam in the wake of President Trump's decision.

But with Congress set to juggle many major tasks over the next month — including providing disaster funding for victims of Hurricane Harvey, raising the debt ceiling, passing a budget and addressing the White House's push for tax reform — it's unclear how much political capital GOP leaders can throw behind such a bill. House Speaker Paul Ryan has signaled his willingness, but Senate Majority Leader Mitch McConnell has not. And the legislative branch has not shown an ability this year to pass anything of consequence.

Here's a rundown on some of the top pending legislation:

Dream Act, sponsored by Sens. Dick Durbin, D-Ill., and Lindsey Graham, R-S.C.

The senators held a press conference Tuesday afternoon after the Trump administration's announcement, saying they're pushing for action on their latest iteration of the Dream Act by the end of September. While Durbin was highly critical of Trump's decision, Graham said he believed it was the right decision, because he thought Obama had overstepped his legal authority by issuing the far-reaching executive decision. The South Carolina Republican said he believed Congress would be pushed to act

"The reason I think it will get done now is that the leadership of the Republican Party, including the president, realizes it's good for the country economically and otherwise to give these kids the certainty they need in their lives," Graham said.

According to the National Immigration Law Center (NILC), the Dream Act has many of the same protections in place as DACA does, and also creates a path for citizenship or permanent legal resident status if applicants meet certain requirements; DACA did not provide such a path.

Qualifications for permanent status in the Dream Act include having lived in the U.S. for a certain length of time and meeting certain educational, work or military service requirements. It would take at least 13 years for those eligible to achieve citizenship.

However, the White House has already signaled they wouldn't support this bill: When Graham and Durbin proposed it in July, Trump's legislative affairs director Marc Short said, "I think that the administration has opposed the Dream Act and likely will be consistent on that."

Recognizing America's Children (RAC) Act, sponsored by Rep. Carlos Curbelo, R-Fla.

The Miami congressman's plan, which he introduced in March, also takes much of what was in DACA and codifies it, while also providing a pathway toward legal status and, eventually, citizenship.

"The bill provides immigrants that have been vetted by The Department of Homeland Security with three pathways toward legalization: higher education, service in the armed forces, or work authorization. Following a 5-year conditional status, these immigrants would be able to reapply for a 5-year permanent status," Curbelo said in a press release announcing the bill earlier this year. At the end of their permanent status — after a total of 10 years, according to the NILC — DREAMers could apply for citizenship .

"These are young people that went to school with our own children, they are working in this country, they are contributing to this country, they speak English, Curbelo saidon Tuesday on CNN's New Day. "This is the only country that many of them remember. So we should afford them — as long as they're willing to be productive members of society, which most of them are — we should afford them the opportunity to be fully recognized as Americans and to gain legal status in this country."

Curbelo represents a majority-Hispanic district that went for Democrat Hillary Clinton by 16 points over Trump last November — making Curbelo a major target in the 2018 midterms.

Hope Act, sponsored by Rep. Luis Gutierrez, D-Ill.

Gutierrez introduced this bill in July, flanked by the Congressional Hispanic Caucus; 112 Democrats already had signed on to cosponsor his legislation.

To be eligible, people must have entered the U.S. before age 18. It does not include any work, education or military requirements, but does reject people who have been convicted of certain crimes, according to the NILC.

It also provides the fastest path to citizenship. Those eligible can apply for conditional permanent residency, valid for up to eight years, and after three years can apply for lawful permanent residence status. After a total of five years, they can apply for U.S. citizenship.

"DACA is under threat, and we know that President Trump and the attorney general, if he is still in office, will not lift a finger to defend DACA," Gutierrez said back in July."This will replace the order in the lives of these young people with chaos. It will replace the hope they have for their futures with despair. It substitutes cruelty for their aspirations and the aspirations of our entire immigrant population. All of us here support DACA. We fought for DACA and we will defend DACA. And the defense includes putting on the table legislation that charts a way forward."

BRIDGE Act, sponsored by Rep. Mike Coffman, R-Colo.

As soon as news broke over the weekend that Trump was going to end DACA, Coffman announced he planned to file a discharge petition to get his bill to the House floor. The rarely-used method requires a simple majority of signatories to circumvent party leaders and bring up a bill for a vote by the full House.

The BRIDGE Act — which stands for Bar Removal of Individuals Who Dream and Grow our Economy — was proposed back in January, and essentially would codify the current DACA program into law and extend it for three years, allowing Congress more time to come up with a comprehensive, long-term solution on immigration reform.

Unlike the other bills in Congress, it does not include a path to citizenship.

"The members of Congress have a choice: They can let the program be phased out and these young people be subject to deportation, or they can sign this petition for the Bridge Act," Coffman told The Denver Channel on Monday. "The federal government knows where they are, so if there are deportation proceedings, they could be expedited."

Like Curbelo, Coffman is also facing a tough reelection campaign in 2018; he serves a district that Clinton won by 9 points.

What Is DACA

On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several guidelines may request consideration of deferred action for a period of two years, subject to renewal. They are also eligible for work authorization. Deferred action is a use of prosecutorial discretion to defer removal action against an individual for a certain period of time. Deferred action does not provide lawful status.

Consideration of Deferred Action for Childhood Arrivals (DACA)

DACA Has Changed!

  • We are no longer accepting initial requests for DACA, but we will adjudicate initial requests for DACA accepted by Sept. 5, 2017.
  • We will no longer approve advance parole requests associated with DACA.
  • We are only adjudicating DACA renewal requests received by Oct. 5, 2017, from current beneficiaries whose benefits will expire between Sept. 5, 2017 and March 5, 2018.
  • Read the 2017 DACA announcement
This page provides information on requesting consideration of deferred action for childhood arrivals (DACA). You may request DACA for the first time or renew your existing period of DACA if it is expiring.

Find on this Page:

Previous Rules:

Request DACA for the First Time

The following information explains the guidelines for requesting DACA for the first time. If you need further information and cannot find it in our Frequently Asked Questions, you can call our National Customer Service Center at 1-800-375-5283 or 1-800-767-1833 (TDD for the hearing-impaired). Customer service officers are available Monday-Friday from 8 a.m. to 6 p.m. in each U.S. time zone.


You may request DACA if you:
  1. Were under the age of 31 as of June 15, 2012;
  2. Came to the United States before reaching your 16th birthday;
  3. Have continuously resided in the United States since June 15, 2007, up to the present time;
  4. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
  5. Had no lawful status on June 15, 2012;
  6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  7. Have not been convicted of a felony, significant misdemeanor,or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Age Guidelines

Anyone requesting DACA must have been under the age of 31 as of June 15, 2012. You must also be at least 15 years or older to request DACA, unless you are currently in removal proceedings or have a final removal or voluntary departure order, as summarized in the table below:

Tuesday, August 22, 2017

Indicting the President: President Clinton’s Justice Department Says No by Ronald Rotunda


Nearly 20 years ago, Ken Starr, former solicitor general and judge, asked me to evaluate whether a federal grand jury could indict a sitting president. Starr was then the independent counsel investigating Whitewater and other scandals associated with President Clinton. He turned to me because I was former assistant majority counsel, Senate Watergate Committee, and coauthor of a [warning, shameless self-promotion] widely cited Treatise on Constitutional Law (now six volumes long, in its 5th edition).

My conclusion is (or may be) relevant again. It’s nice to know what I write is timeless. The National Archives, in response to a freedom of information request from the New York Times, has now made public most of my Opinion Letter (it kept secret two portions).

Opinion Letters, unlike briefs, are not argumentative. They should represent the lawyer’s objective evaluation and prediction of what courts are likely to do, even if clients don’t like the results.

My Letter is 56 pages long, with 164 footnotes, not because I was paid by the word but because the issue is complex. My conclusion is pithier. A federal grand jury can probably indict a sitting president for committing a serious felony, unless other rules preclude that (which is the case here—more about that shortly). There is no case directly on point, but the language of the Constitution, language in several cases, and the present Justice Department rules support my conclusion.

First, the framers knew how to write an immunity clause. For representatives and senators, there is a “privilege from arrest” in civil cases when going to and from Congress—a privilege now irrelevant because we no longer use arrest in civil cases. Also, they may not be criminally prosecuted for what they say in Congress (“for any Speech or Debate in either House”). Charles Pinckney, a signer of the Constitution, said, “No privilege of this kind [given to Congress] was intended for your Executive” because “no subject had been more abused than privilege.” Gravel v. United States(1973) said, “executive privilege has never been applied to shield executive officers from prosecution for crime.”
Some argue that criminal prosecution would distract the president and make him unable to perform his duties. The 25th Amendment answers that objection, by offering a mechanism to keep the Executive Branch running if the president is temporarily unable to discharge his powers. In this country, no one is above the law.

On the other hand, a state prosecution of the president is probably unconstitutional because of the Supremacy Clause. There may be thousands of state prosecutors, many of whom might love to secure their 15 minutes of fame by indicting a sitting president, but state prosecutors may not interfere with presidential power.

There is another caveat: the Supreme Court has reaffirmed for nearly 150 years that the president has complete, unreviewable power over federal criminal cases. As the unanimous Court said in the 1974 Watergate Case, United States v. Nixon, “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case,” citing Confiscation Cases.

Nixon said the Watergate prosecutor was no ordinary federal prosecutor because the attorney general gave him “unique authority and tenure.” Admittedly, the Court said, the Department of Justice could change its regulations, but “So long as this regulation is extant it has the force of law.” The present rules of the Justice Department do not mimic those rules.

After Watergate, Congress enacted a special prosecutor statute; though it no longer exists, it applied at the time I wrote my Opinion Letter. Because a statute protected that Independent Counsel (Ken Starr) from removal, he could ask the grand jury to indict.

In contrast, the present regulatory special counsel, (Robert Mueller) does not have the tenure afforded by the unique Watergate regulations and certainly does not have any statutory tenure.

In addition, the present regulations require that Mr. Mueller must follow Justice Department rules and policies. In October 2000, during the waning days of President Clinton’s second term, the Justice Department’s Office of Legal Counsel (OLC), issued an Opinion that concluded “a sitting President is immune from indictment as well as from further criminal process.” The regulations that govern Mr. Mueller require him to follow the Department of Justice “rules and policies.” The OLC’s opinions are “controlling” on the Executive, so this regulatory independent counsel, unlike a statutory independent counsel or the Watergate regulatory counsel, cannot indict a sitting president, which is what my 1998 Opinion Letter concluded. If you don’t like that result, blame President Clinton.

Yet, it’s premature by a long shot to think about indicting the president because all we have now, frankly, is a mountain of innuendo. Some argue Trump obstructed justice when he terminated FBI Director James Comey. However, Comey’s departure didn’t obstruct any investigation. FBI agents were investigating both before and after Comey’s departure. Deputy Attorney General Rod Rosenstein was in charge of the Russian investigation both before and after Comey left. Comey seems to think he was in charge, but the Justice Department is in charge, a point that Rosenstein emphasized in his memorandum criticizing Comey.

Second, Trump’s firing Comey in May cannot be obstruction simply because three months earlier, February 14, 2017, Comey now says Trump had told him that Flynn’s “a good guy. I hope you can let this go.” Comey now claims this comment may be obstruction, but, if he really thought that, he had a legal obligation to report it last February. Title 28, § 535, of the U.S. Code clearly requires a government lawyer who uncovers evidence that a government official has violated the law to report it to the Attorney General. Comey reported nothing, which indicates that he did not think there was any obstruction at the time. Comey’s actions are inconsistent with the idea he thought there was an obstruction of justice. See also, In re Lindsey (D.C. Cir. 1998) (per curiam).

The FBI is supposed to be nonpartisan, but it is not supposed to be independent of the president. Consider, for example, if FDR had fired FBI Director J. Edgar because of his investigation of Albert Einstein, or if FDR told Hoover to stop investigating Einstein. (“Einstein’s a good guy; I hope you can let this go.”) Do we really think that FDR would be obstructing justice? Or, assume that Harry Truman ordered Hoover to stop investigating Ernest Hemingway. Again, do we really think that Truman’s order (a lot more specific than Trump’s “hope”) is a crime? If JFK told Hoover that Martin Luther King is “a good guy” and you must stop investigating him, we would not accuse JFK of obstruction for firing Hoover. Instead, we would have praised JFK.

None of these hypotheticals compare to the charges involving President Nixon, that he or his aides offered hush money or promises of executive clemency in exchange for silence.

Recall also that President Obama said repeatedly he has prosecutorial discretion: the executive branch (including the FBI) has limited resources, and the president has the power to direct those resources.

President Trump has the same power that President Obama did to direct resources.

Finally, we should be very cautious in converting policy disputes into criminal disputes. There were criminal investigations and prosecutions of Wisconsin Governor Scott Walker, Texas Governor Rick Perry, Alaska Senator Ted Stevens, and House Speaker Tom Delay, of Texas. Courts threw out all these cases, but only after much time and expense. A New York state grand jury indicted President Reagan’s labor secretary, Ray Donovan, and six others, for larceny and fraud. Donovan resigned as Labor Secretary, the state prosecutor got his 15 minutes of fame, and then the jury acquitted them all. Donovan asked, rhetorically, “Which office do I go to to get my reputation back?”

Follow @rrotunda

Ronald D. Rotunda is The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University, The Dale E. Fowler School of Law. He is coauthor of six-volume Treatise on Constitutional Law: Substance and Procedure (5th ed., Thomson-West, St. Paul, Minn. 2012-2013), and Legal Ethics: The Lawyer's Deskbook on Professional Responsibility (ABA Thomson-West & ABA, 11th ed. 2013), a one-volume treatise on Legal Ethics.

Friday, October 28, 2016

Anthony Weiner's Laptop Has Emails Which May Incriminate Hillary Clinton

New Emails in Clinton Case Came From Devices Once Used by Anthony Weiner

Huma Abedin and Hillary Clinton on the campaign’s plane on Friday. CreditDoug Mills/The New York Times

WASHINGTON — A new trove of emails that appear pertinent to the now-closed investigation into Hillary Clinton’s private email server was discovered after the F.B.I. seized at least one electronic device shared by Anthony D. Weiner and his estranged wife, Huma Abedin, a top aide to Mrs. Clinton, federal law enforcement officials said Friday.
The F.B.I. is investigating illicit text messages that Mr. Weiner, a former Democratic congressman from New York, sent to a 15-year-old girl in North Carolina. The bureau told Congress on Friday that it had uncovered new emails related to the Clinton case — one federal official said they numbered in the tens of thousands — potentially reigniting an issue that has weighed on the presidential campaign and offering a lifeline to Donald J. Trump less than two weeks before the election.
In a news conference in Des Moines, Mrs. Clinton called on the F.B.I. to release more information about what it had found “without delay,” and insisted that she was confident there would be no change to the F.B.I.’s decision to drop the case last summer.
“The American people deserve to get the full and complete facts immediately,” she said.
In a letter to Congress, the F.B.I. director, James B. Comey, said that emails had surfaced in a case unrelated to the Clinton case, and that they “appear to be pertinent to the investigation.”
Anthony Weiner at the Democratic National Convention in July. CreditRuth Fremson/The New York Times

Mr. Comey said the F.B.I. was taking steps to “determine whether they contain classified information, as well as to assess their importance to our investigation.” He said he did not know how long it would take to review the emails, or whether the new information was significant.
Mr. Trump has fallen behind Mrs. Clinton in most national polls and in many key states. Polls have been tightening in recent days, however, amid the daily release of hacked Clinton campaign emails published byWikiLeaks.
Mr. Trump seized on the F.B.I. action on Friday at a rally in New Hampshire. To cheers of “lock her up” from his supporters, Mr. Trump said: “Hillary Clinton’s corruption is on a scale we have never seen before. We must not let her take her criminal scheme into the Oval Office.”
After deriding the F.B.I. for weeks as inept and corrupt, Mr. Trump went on to praise the law enforcement agency.
“I have great respect for the fact that the F.B.I. and the D.O.J. are now willing to have the courage to right the horrible mistake that they made,” Mr. Trump said, referring also to the Department of Justice. “This was a grave miscarriage of justice that the American people fully understand. It is everybody’s hope that it is about to be corrected.”

Document: Letter to Congress From F.B.I. Director on Clinton Email Case

The Clinton campaign called on Mr. Comey to provide information beyond what was put forth in the letter.
“Director Comey’s letter refers to emails that have come to light in an unrelated case, but we have no idea what those emails are and the director himself notes they may not even be significant,” said John D. Podesta, chairman of Mrs. Clinton’s campaign.
He added: “It is extraordinary that we would see something like this just 11 days out from a presidential election.”
Mrs. Clinton, arriving Friday in Cedar Rapids, Iowa, waved at members of the media gathered on the tarmac but ignored shouted questions.
The Republican National Committee cheered the new attention on Mrs. Clinton’s emails as a potential turning point in the race.
“The F.B.I.’s decision to reopen their criminal investigation into Hillary Clinton’s secret email server just 11 days before the election shows how serious this discovery must be,” Reince Priebus, the Republican committee chairman, said in a statement. “This stunning development raises serious questions about what records may not have been turned over and why, and whether they show intent to violate the law.”
In July, Mr. Comey announced that the F.B.I. had closed the investigation after determining that no one should face criminal charges. But Mr. Comey did criticize Mrs. Clinton and her aides for what he termed the “extremely careless” handling of sensitive information.
Ms. Abedin separated from Mr. Weiner in August after it emerged that he was exchanging lewd messages with a woman on social media. Such behavior had destroyed his congressional career and his 2013 mayoral campaign.
Mr. Trump has pointed to Mrs. Clinton’s association with the couple as an example of her bad judgment.
“I only worry for the country in that Hillary Clinton was careless and negligent in allowing Weiner to have such close proximity to highly classified information,” Mr. Trump said last summer. “Who knows what he learned and who he told?”

Correction: October 28, 2016 
An earlier version of this article incorrectly reported when the F.B.I. director, James B. Comey, announced that the bureau had closed its investigation into Hillary Clinton’s email use. It was in July, not September.

See Also:

Benghazi on the Record: Asked and Answered

Saturday, February 6, 2016

New York City Council Members Want a $36,000 Raise, So They Vote and Give Themselves The Money

That is an easy way to scam the public.

Good job, City Council!

Betsy Combier
Editor, National Public Voice
Council Speaker Melissa Mark-Viverito

Crain's Business EDITORIAL

Council's tortured pay-raise saga shows members still don't get it

FEBRUARY 5, 2016

The city’s process for raising elected officials’ pay involves recommendations from an independent commission. And for good reason: so the public can trust that the pay raise is warranted. Yet City Council members declared that they deserved a salary well above what the commission proposed: $148,500 instead of $138,315. And that only they should get more than was suggested—not the mayor, comptroller, public advocate, borough presidents or district attorneys.
On Friday, council members voted 40 to 7 to give themselves that hefty $36,000 raise. If their goal was to increase cynicism, they did a bang-up job. But they weren’t done. Their self-serving justifications and hurried vote only made matters worse. The members tried to sell their disingenuous move by packaging it with reforms sought by good-government groups. The reforms increase transparency, limit members’ outside income and—ironically—preclude future councils from raising their own pay, as this council is doing. The council should be willing to pass reforms without the quid pro quo of a pay raise. After all, improving the government is their job, not something that merits a permanent annual bonus.
One of the reforms—elimination of the stipends that members receive for holding "leadership positions" and for chairing committees, subcommittees and task forces—is being oversold. Members say this will reduce the council speaker’s power over them, as she is the one who hands out their titles (which are held by an absurd 46 of the 51 members and boost their $112,500 salaries by an average of 10%). But members treasure these appointments for many reasons besides the money. They love the titles, the power to steer legislation and hold hearings, the media opportunities and the fundraising advantage.
When a member chairs the Land Use Committee, for example, real estate interests shower him with donations without even being asked. Members say preventing them from having second jobs will deter corruption. That’s true in Albany, where legislators have a light work schedule, a low base salary and usually another job. But corruption, thankfully, is less of an issue in the council, where members already make a decent living.
Banning outside income is a solution in search of a problem. Few council members even have a second job. To cap off this escapade, the council rushed the legislation through, scheduling a rare Friday vote even though the pay increase is retroactive to Jan. 1. The only point of hurrying was to limit the chance for criticism. Accepting the commission’s recommended raise, which outpaced inflation, would have conveyed that elected officials are not their own bosses. In giving themselves an increase of their choosing, council members strengthened the case against one. – THE EDITORS
A version of this article appears in the February 8, 2016, print issue of Crain's New York Business.

Monday, January 18, 2016

JOSEPH MARGULIES: Criminal Justice Must Be Organized Around Dignity, Community, and Equality

Reform and the Failure of Imagination
Blind JusticeThese are peculiar times. On the one hand, uttering the words, “criminal justice reform” is an invitation to what a friend once described as a state of heated agreement. As I have often described, and as all can see, there is an accelerating recognition that the American criminal justice system is badly broken and in desperate need of repair.
This is strange enough, given the long and enduring enthusiasm for punishment and demonization in this country. Even more curious is the satisfaction the chattering class seems to derive from declaring, again and again, how bad things have become. The declaration seems to act as a kind of penance, expiating the sin of prolonged ignorance.
And spare me the prattle about the size, cost, and moral bankruptcy of the carceral state, as though repeating it yet again, this time with feeling, will account for the energy that finally swirls around the topic. The conditions that now attract so much attention have existed for years, and cannot remotely explain the relatively sudden interest in reform.
Yet on the other hand, the gathering intensity and increasing popularity of these declarations is not matched by anything in the policy pipeline (as opposed to the research pipeline) that has the slightest chance to effect meaningful reform, let alone achieve a genuine transformation of the criminal justice system.
Indeed, as the call for change grows louder, consensus seems to coalesce around programs like the Justice Reinvestment Initiative that are least likely to achieve comprehensive change. This produces the most curious condition of all: the more people want things to be different, the more likely they are to stay the same. How can we get at the root of a paradox like that?
* * *
Criminal justice reform in the United States suffers from three, overlapping and equally serious flaws. First, as I have written before, it focuses overwhelmingly on the back end of the system—that is, on the institutions and practices that shape the lives of people who have already been convicted or sentenced to prison. The reforms that attract the most attention, especially among politicians, say almost nothing about the front end—policing, prosecution, and defense services.
Second, criminal justice reform assiduously avoids questions of race. The most widely imitated reforms in state houses across the country and the halls of the U.S. Capitol treat race and racial disparity as though they were obscenities, not to be uttered in polite conversation. The silence surrounding Black Lives Matter and other anti-police-violence movements, for instance, is deafening.
And third, reform expends nearly all its energy on the hunt for the elusive low-level, non-violent drug offender. But as I have noted elsewhere, “drug offenders represent only 20 percent of the prison population nationwide, and only a small fraction of these people are both low-level and have no history of violence. Tracking down this particular inmate is like hunting for a snark.”
Taken together, these three limitations—the refusal to address the front end of the system, the failure to confront questions of race, and the obsessive focus on a very small number of unrepresentative offenders—all but guarantee that criminal justice reform will be modest and incremental at best. Of course, even modest and incremental improvements are better than nothing. But it would be a terrible shame for this moment to pass with no more to show for it than tinkering.
These limitations represent an acute failure of imagination. Policymakers cannot or will not imagine a criminal justice world meaningfully different from the one we have created. To encourage this mental leap, I have urged the development of an alternative,transformative vision for criminal justice organized around three, inviolable principles: dignity; community; and equality.
In response to this call, some people have wondered how to get from here to there. At one level, this is a question about how and why reform happens in the United States, which is a complex phenomenon. But as I have shown elsewhere, to win widespread support for major institutional change in the United States, reformers must construct a narrative that successfully casts the offending institutions as “un-American”—that is, as a betrayal of the potent myths and iconic ideals of national identity. Developing such a narrative does not guarantee a movement’s success—much also depends on expanding political opportunities. But not developing it guarantees a movement’s failure.
And therein lay the problem. Despite all the talk about criminal justice reform, the narrative of the punitive era remains fundamentally unchallenged and unchanged. That narrative runs something like this: The most important role for the state is to guarantee the security of a person’s life and property. Some people threaten that security for no good reason other than personal failings, and it is the responsibility of all law-abiding citizens to see to it that the state has the power and resources it needs to fulfill its central mission.
This deceptively simple narrative is the foundation upon which the entire architecture of the carceral state has been constructed. It gave rise to an interlocking set of institutions, rules, and practices at every phase of the criminal justice system, from the first contact with the police to the enduring disabilities imposed after release from prison. Collectively, this elaborate lattice enabled the state to accomplish what had been constructed as its primary mission—viz., to separate “us” from “them” as thoroughly as possible.
To ensure their legitimacy in a post-civil rights era, these rules, practices, and institutions had to have several characteristics. First, they had to be facially neutral, which honored the newfound creedal commitment to formal equality and permitted the belief that racial or ethnic disparities in criminal justice derive entirely from different rates of offending. They allowed the state, in other words, to appear fair.
Second, the entire system had to be inscribed into the written law, which encouraged the myth that ours is a government of laws and not of men. And finally, it had to protect and promote the historic attachment to individual liberty and private property, which allowed it to claim the legitimacy that comes from a long and uninterrupted pedigree.
The creation of the carceral state was of course more complex than I suggest here. The narrative of the punitive era also had to fit other emerging narratives of the late 20th century, like the elevation of individual responsibility that lay behind the gradual decline of the welfare state and the triumph of a colorblind ethos. The punitive narrative also needed to create heroes and demons (the over-worked prosecutor twisted into knots by legal technicalities, for instance, and her perennial nemesis, the cunning drug dealer who manipulates the rules to escape justice), which in turn gave cultural legitimacy to the expanding and entangling reach of the state.
The point, however, is that a simple narrative about the way the world ought to be was mobilized and pressed into service again and again to create an entirely new legal, political, and cultural apparatus—the governance of the carceral state. And as yet, this narrative has no competitor. Criminal justice reform in the United States does not attack this narrative so much as sand down its rough edges. As a result, we continue to live in a world dominated by the punitive narrative: when it comes to criminal justice, the state exists to protect us from them.
I continue to maintain that criminal justice in the United States needs to be organized around dignity, community, and equality. But we need a narrative that takes us from here to there—a narrative that makes change just and resistance “un-American.” That is the work of future columns.

Joseph Margulies
Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record in Rasul v. Bush (2004), involving detentions at the Guantánamo Bay Naval Station, and in Geren v. Omar &Munaf v. Geren (2008), involving detentions at Camp Cropper in Iraq. Presently he is counsel for Abu Zubaydah, whose interrogation in 2002 prompted the Bush Administration to draft the “torture memos.” In June 2005, at the invitation of Pennsylvania Senator Arlen Specter, Margulies testified at the first Senate Judiciary Committee hearing on detainee issues.
Margulies writes and lectures widely on civil liberties in the wake of September 11 and his commentaries have appeared in numerous publications, including the Washington Post, the Los Angeles Times, the Chicago Tribune, the National Law Journal, the Miami Herald, the Christian Science Monitor, the Virginia Quarterly Review, and the Legal Times. He is also the author of the widely acclaimed book, Guantánamo and the Abuse of Presidential Power (Simon and Schuster 2006). Among other accolades, Guantánamo was named one of the best books of 2006 by The Economist magazine. It received the prestigious Silver Gavel Award of 2007, given annually by the American Bar Association to the book that best promotes “the American public’s understanding of the law and the legal system.” It also won the Scribes Book Award of 2007, given annually by the American Society of Legal Writers to honor “the best work of legal scholarship published during the previous year.” He is also the author of What Changed When Everything Changed: 9/11 and the Making of National Identity(Yale Univ. Press 2013) and has won numerous awards for his work since 9/11.

Sunday, January 17, 2016

Robert M. Wachter: How Measurement Fails Doctors and Teachers

By ROBERT M. WACHTER, New York Times, JAN. 16, 2016

TWO of our most vital industries, health care and education, have become increasingly subjected to metrics and measurements. Of course, we need to hold professionals accountable. But the focus on numbers has gone too far. We’re hitting the targets, but missing the point.

Through the 20th century, we adopted a hands-off approach, assuming that the pros knew best. Most experts believed that the ideal “products” — healthy patients and well-educated kids — were too strongly influenced by uncontrollable variables (the sickness of the patient, the intellectual capacity of the student) and were too complex to be judged by the measures we use for other industries.

By the early 2000s, as evidence mounted that both fields were producing mediocre outcomes at unsustainable costs, the pressure for measurement became irresistible. In health care, we saw hundreds of thousands of deaths from medical errors, poor coordination of care and backbreaking costs. In education, it became clear that our schools were lagging behind those in other countries.
So in came the consultants and out came the yardsticks. In health care, we applied metrics to outcomes and processes. Did the doctor document that she gave the patient a flu shot? That she counseled the patient about smoking? In education, of course, the preoccupation became student test scores.

All of this began innocently enough. But the measurement fad has spun out of control. There are so many different hospital ratings that more than 1,600 medical centers can now lay claim to being included on a “top 100,” “honor roll,” grade “A” or “best” hospitals list. Burnout rates for doctors top 50 percent, far higher than other professions. A 2013 study found that the electronic health record was a dominant culprit. Another 2013 study found that emergency room doctors clicked a mouse 4,000 times during a 10-hour shift. The computer systems have become the dark force behind quality measures.

Education is experiencing its own version of measurement fatigue. Educators complain that the focus on student test performance comes at the expense of learning. Art, music and physical education have withered, because, really, why bother if they’re not on the test?

At first, the pushback from doctors and teachers was dismissed as whining from entitled and entrenched guilds spoiled by generations of unfettered autonomy. It was natural, went the thinking, that these professionals would resist the scrutiny and discipline of performance assessment. Of course, this interpretation was partly right.

But the objections became harder to dismiss as evidence mounted that even superb and motivated professionals had come to believe that the boatloads of measures, and the incentives to “look good,” had led them to turn away from the essence of their work. In medicine, doctors no longer made eye contact with patients as they clicked away. In education, even parents who favored more testing around Common Core standards worried about the damaging influence of all the exams.

Even some of the measurement behemoths are now voicing second thoughts. Last fall, the Joint Commission, the major accreditor of American hospitals, announced that it was suspending its annual rating of hospitals. At the same time, alarmed by the amount of time that testing robbed from instruction, the Obama administration called for new limits on student testing. Last week, Andy Slavitt, Medicare’s acting administrator, announced the end of a program that tied Medicare payments to a long list of measures related to the use of electronic health records. “We have to get the hearts and minds of physicians back,” said Mr. Slavitt. “I think we’ve lost them.”

Thoughtful and limited assessment can be effective in motivating improvements and innovations, and in weeding out the rare but disproportionately destructive bad apples.

But in creating a measurement and accountability system, we need to tone down the fervor and think harder about the unanticipated consequences.

Measurement cannot go away, but it needs to be scaled back and allowed to mature. We need more targeted measures, ones that have been vetted to ensure that they really matter. In medicine, for example, measuring the rates of certain hospital-acquired infections has led to a greater emphasis on prevention and has most likely saved lives. On the other hand, measuring whether doctors documented that they provided discharge instructions to heart failure or asthma patients at the end of their hospital stay sounds good, but turns out to be an exercise in futile box-checking, and should be jettisoned.

We also need more research on quality measurement and comparing different patient populations. The only way to understand whether a high mortality rate, or dropout rate, represents poor performance is to adequately appreciate all of the factors that contribute to these outcomes — physical and mental, social and environmental — and adjust for them. It’s like adjusting for the degree of difficulty when judging an Olympic diver. We’re getting better at this, but we’re not good enough.

Most important, we need to fully appreciate the burden that measurement places on professionals, and minimize it. In health care, some of this will come through advances in natural language processing, which may ultimately allow us to assess the quality of care by having computers “read” the doctor’s note, obviating the need for all the box-checking. In both fields, simulation, video review and peer coaching hold promise.
Whatever we do, we have to ask our clinicians and teachers whether measurement is working, and truly listen when they tell us that it isn’t. Today, that is precisely what they’re saying.

Avedis Donabedian, a professor at the University of Michigan’s School of Public Health, was a towering figure in the field of quality measurement. He developed what is known as Donabedian’s triad, which states that quality can be measured by looking at outcomes (how the subjects fared), processes (what was done) and structures (how the work was organized). In 2000, shortly before he died, he was asked about his view of quality. What this hard-nosed scientist answered is shocking at first, then somehow seems obvious.
“The secret of quality is love,” he said.

Our businesslike efforts to measure and improve quality are now blocking the altruism, indeed the love, that motivates people to enter the helping professions. While we’re figuring out how to get better, we need to tread more lightly in assessing the work of the professionals who practice in our most human and sacred fields.

Robert M. Wachter is a professor and the interim chairman of the department of medicine at the University of California, San Francisco, and the author of “The Digital Doctor: Hope, Hype, and Harm at the Dawn of Medicine’s Computer Age.”

Ross Douthat: The Bill Clinton Question

Ross Douthat

IN 2014 Matt Bai published a book called “All the Truth Is Out,” a history of Gary Hart’s scandal-driven downfall that doubled as a lament for political journalism’s surrender to the lure of tabloid culture.

Bai’s book was a great read, and nobody would dispute his point that there’s far less privacy for politicians than in the days when Lyndon Johnson could tell a group of reporters: “You may see me coming in and out of a few women’s bedrooms while I am in the White House, but just remember, that is none of your business.”

But his book’s title was still a little bit misleading. Even today, we don’t get all the truth about the sex lives of the powerful and famous. We get more of it than people got in the 1960s, but it still often comes in fragments, glimpses, rumor and conjecture.

You can read a thousand supermarket stories, for instance, without getting any closer to the truth about most Hollywood relationships. And while the mainstream press isn’t necessarily protective of public figures, neither is it rushing out to do National Enquirer-style digging whenever there’s a plausible rumor in the wind. For every Eliot Spitzer or Mark Sanford, there’s a scandalous story that flares and vanishes amid a lot of journalistic discomfort about touching it.

There’s also a certain randomness to when a scandal actually breaks big. To take a nonpolitical example, Bill Cosby’s sexual exploitations were kinda-sorta in the public record for years and years, but they were a footnote in profiles and biographies until Hannibal Buress starting talking about Cosby-the-rapist in his comedy routines. Then suddenly, it was a story, a cascade of stories, and the whole truth or something close was out.

Similarly, in the political realm, The National Enquirer first published John Edwards-Rielle Hunter stories in October of 2007. But Edwards was able to make his way through an entire primary campaign before the mainstream media finally, reluctantly, started reporting on his love child.

Which brings us to Bill Clinton, whose old scandals are once more in the news — because Donald Trump is talking about them, because Juanita Broaddrick took to Twitter to reassert her claim that Clinton raped her in 1978, and because today’s liberal deference toward rape victims makes an uneasy fit with how the Clinton camp dealt with accusations from Broaddrick, Kathleen Willey and Paula Jones in the 1990s.

This has produced a lot of discussion about whether the former president’s sexual past is “fair game” during his wife’s 2016 campaign. But that question tends to assume that there’s some consensus about the former president’s sexual past. It assumes that all the truth is out.

In reality, though, the narrative around Clinton’s sexual past is highly unstable, with several variations that have a plausible claim on being true.

There’s the official Clintonite narrative, in which the former president strayed with Gennifer Flowers and Monica Lewinsky, was forgiven by his wife and daughter, and deserves to have his repentance respected.

Then there’s the narrative that I suspect most Americans believe, in which the former president was much more of a tomcat in Arkansas, and probably has tomcatted occasionally in his post-presidency — but always consensually, and lately in ways that have minimized exposure or embarrassment.

If either of these narratives are true, then Clinton’s sex life will be a non-issue in 2016. If an adulterer, even a frequent adulterer, is all he is, then an America that didn’t want him impeached in the 1990s isn’t going to object to having him as the First Gentlemen today.

But suppose you believe the Broaddrick story. Liberals dismissed it during the impeachment days, but if you read the summary of the case from the (mostly liberal) Dylan Matthews at the (mostly liberal) website Vox, this dismissal looks unfair. There’s an inescapable he-said/she-said dynamic, but one need not be a “believe all rape allegations” absolutist to find her claim persuasive.

If she’s telling the truth, then Clinton’s sexual past becomes something more predatory. The slippage between a powerful man’s dalliances and straightforward predation is something that could happen just once. But looked at in the light of a credible rape allegation, there are all sorts of Clinton stories — the Willey and Jones cases, the rumors collected by Jones’s lawyers, the old tales of state troopers being used as procurers, the 2002 globetrotting on the jet of a billionaire who’s also a convicted statutory rapist — that could suggest a darker pattern, tending toward the Cosby-esque.

The truth about Bill Clinton’s past, then, is that we don’t actually know the truth. And even in our tabloid-driven age, it’s quite possible that we simply never will.

But if the question is, “Does Bill’s past matter for Hillary’s campaign?,” the answer depends less on what we know right now than on what might be waiting to come out.