New York voters overwhelmingly approved on Tuesday a measure giving judges the power to claw back pension benefits from public officials convicted of feloniously misusing the powers of their offices, but reactions from the legal community were mixed as to whether the change will be effective.

The measure, called Proposal 2, passed with 72 percent of more than 3.2 million votes cast, having been placed on the ballot in the wake of a string of corruption scandals involving New York lawmakers that have stoked popular anger.

New York judges were first given the ability to reduce or revoke the pensions of public officials convicted of crimes after the 2011 passage of the New York enacted Public Integrity Reform Act, however they were not authorized to strip the pensions of officials who entered the state retirement fund before the law was enacted.

The measure directs the state Assembly to amend the state constitution to give judges the discretion to reduce or to revoke entirely the pensions of public officials convicted of felonies relating to their official duties.

In deciding whether to claw back benefits in court, judges would be able to consider the severity of the offenses as well as whether or not stripping pension benefits would create undue hardship for defendants.

Elkan Abramowitz, a white-collar defense attorney and a partner at Morvillo Abramowitz Grand Iason & Anello, said the new measure empowers prosecutors with the ability to seek “too strict” a penalty for public officials facing corruption charges and said it would be “unfair” to take pension benefits earned during years where officials were not up to any wrongdoing.

Abramowitz also questioned the effectiveness of the measure on curbing corruption and likened it to forfeiture, though he said a difference between forfeiture and the new law is that forfeiture is typically used to seize assets that were connected to the commission of a crime.
“Assuming that the pension was not used to commit the crime, in my view, there's no reason to take it away,” Abramowitz said. He said that there are adequate punishments to deal with corruption already on the books.

Jennifer Rodgers, executive director of the Center for the Advancement of Public Integrity at Columbia Law School, also questioned how effective the new law could be at curbing public corruption. She said it may give prosecutors in public corruption cases slightly more leverage, and that it may lead defense attorneys to seek misdemeanor convictions for their clients, but that ultimately the new law leaves little “wiggle room” for attorneys in corruption cases.
“In the end it's going to be up to the judge so the prosecutor isn't going to have a lot of power over that,” Rodgers said.

Rodgers said the state could take a bigger step toward rooting out corruption by banning outside income for lawmakers.

But Todd Blanche, a partner at Cadwalader, Wickersham & Taft who works white-collar defense, said he sees the passage of the measure as an “important step” and as a “seal of approval” for prosecutors.

With regard to those who say the new law wouldn't go far enough, Blanche said he thinks it “strikes the right balance.”

“At the end of the day, money matters,” Blanche said. “That's usually the reason these guys commit the crime.”

Blanche said the new law has a greater effect on defense attorneys than prosecutors, and also said that it may result in more attorneys representing public officials—in addition to their efforts to help them avoid jail time— to seek misdemeanor pleas.

“On top of everything you have to advise your client that there's a good chance that they're going to lose their pension,” Blanche said.

Included in 30 elected officials who have run into trouble in recent years were two members of the so-called “Three Men In a Room”—which includes the governor—who served as the last word on major policy decisions. Former Assembly Speaker Sheldon Silver was convicted of money laundering, Hobbs Act extortion and honest services fraud charges; and Dean Skelos, former Republican majority leader in the state Senate, was convicted of Hobbs Act conspiracy and extortion, honest services wire fraud conspiracy, and federal program bribery.

Silver was allowed to continue drawing an annual pension of $79,224 and Skelos was cleared to draw $95,831.

In light of a recent decision by the U.S. Supreme Court that narrowed what can be defined as public corruption, the U.S. Court of Appeals for the Second Circuit threw out convictions in both cases, which have been sent back to district courts.