The week ahead is Barack Obama’s last as President. (It’s strange to the write that.) In the twilight of his second term President Obama is full steam ahead with the bold executive gestures that have characterized what historians may one day label “the pen and phone period” of his presidency: the ban on offshore drilling, the designations of Bears Ears and Gold Butte National Monuments, granting clemency to 231 prisoners in a single day. Less momentous, but of interest, is Obama’s recent barrage of scholarly publication. In addition to penning articles in Science and the New England Journal of Medicine, last week Obama published “The President’s Role in Advancing Criminal Justice Reform” in the Harvard Law Review. In 1990, Obama became the first black president of the Harvard Law Review, and he went on to teach constitutional law at the University of Chicago. Despite his academic pedigree, Obama never left a paper trail: last week was the first time he published a piece of legal scholarship in his name.
“The President’s Role in Advancing Criminal Justice Reform” doesn’t read like a traditional law review article. Light on analysis, heavy on political platitudes (the phrase “second chance” appears 17 times), it reads more like an apologia for Obama’s record on criminal justice reform. (Like your standard law review commentary, though, it has 300+ footnotes.) Here’s a quick summary of the article, followed by some commentary:
Obama begins by stating the case for reform—the high rate at which America incarcerates its citizens and the associated economic and social costs, the “school-to-prison pipeline,” the disparate impact of the system on communities of color, and the bipartisan consensus in favor of reform.
Regarding reform at the federal level, Obama lauds his Department of Justice for reversing policies that (1) required federal prosecutors “to bring charges that could result in the most severe possible sentence,” (2) allowed prosecutors to use certain sentencing enhancements to trigger “excessive mandatory minimums for low-level, nonviolent drug offenders,” and (3) required defendants who accepted plea agreements to waive their right to appeal based on ineffective counsel.
From there Obama moves on to discuss his most significant legislative accomplishment in the field—the Fair Sentencing Act (FSA), which revised a sentencing scheme that doled out harsher punishments for crack cocaine offenses than for powder cocaine offenses. As Justice Breyer explained in Dorsey v. United States, 132 S.Ct. 2321 (2012), before the FSA the law imposed “the same 5–year minimum term upon (1) an offender convicted of possessing with intent to distribute 500 grams of powder cocaine as upon (2) an offender convicted of possessing with intent to distribute 5 grams of crack.” The FSA reduced this 100-to-1 disparity to 18-to-1, and eliminated the mandatory minimum sentence for simple possession of crack. More comprehensive reform legislation, which would have eliminated or reduced mandatory minimum sentences for nonviolent drug offenses, garnered bipartisan support but never made it to the floor of Congress. Were these efforts successful? The President notes that he’s the first “in decades to leave office with a federal prison population lower than when I took office, even as my Administration saw the rate of violent crime fall to its lowest point in decades.”
On the correctional front, Obama recites achievements such as the Bureau of Prison’s reduction in the use of solitary confinement (it’s now prohibited for juveniles and as a response to low-level infractions), DOJ’s move to end the BOP’s reliance on private prisons, and an emphasis on reintegrating offenders into society. Obama describes one White House initiative that commits businesses and educational institutions to “banning the box” (i.e., removing from job and college applications the part where you have to disclose a criminal record).
Obama may be most proud of his use of the pardon power. To date, he’s commuted more than 1,000 sentences, more than the previous 11 presidents combined. He underscores that this largesse of clemency is not unprecedented: he is “reinvigorating” the power, which was “used . . . on average 222 times per year between 1885 and 1930.”
In a section on state and local reform, Obama acknowledges that the president’s ability in this realm is limited, but that grants, best practice guidelines, DOJ civil rights prosecutions, and wielding the bully pulpit, can all help drive such reform. For example, Obama references the DOJ’s investigation of Ferguson, Missouri, and his Task Force on 21st Century Policing.
In the article’s last section, “Work Unfinished,” Obama urges passage of sentencing reform and gun control legislation, increased treatment opportunities for opioid addicts (the ACA gets a shout-out), improvement of forensic science and data collection, restoration of the franchise to offenders who have paid their debt to society, and the use of technology to promote trust in law enforcement (e.g., body worn cameras). Obama fittingly ends with the word “redemption.” The last eight years have to have taken a toll on Obama’s optimism, but it’s still alive. As with almost all of his sales pitches, he guarantees a win-win with his proposals for criminal justice reform: Not only does such-and-such policy [insert beneficial effect: improve public safety/reduce budget deficits, etc.], but it’s the right thing to do.
One conspicuous omission from the article is marijuana and Obama’s blessing of state initiatives to legalize its recreational use. Although he may be pivoting to a career in academia (?), Obama is still posturing politically and his article, which seeks to inspire governmental reform, thus avoids a divisive issue. Obama is also cautious in how he addresses issues surrounding race. He champions police officers as the “heroic backbone of our communities.” Though Ferguson makes an appearance, Obama mostly avoids the police-citizen conflicts that have roiled the country. He repeatedly refers to disproportionate impacts on communities of color, but in a way that allows the issue to simmer in the background.
Two things I would’ve liked to see more of: There is little in the article about the limits of presidential power in this area. And at times, Obama appears to deem a given policy, initiative, or task force a success simply because of its creation, without rigorously evaluating whether it accomplished its goals.
For a first law review article, Obama didn’t select a bad topic. Throughout his presidency, he’s been criticized for operating outside the law with respect to health care reform, immigration and environmental policy, and the enforcement of Title IX. Obama took a more modest approach to reforming the criminal justice system, and it was one of the few areas where he found bipartisan support. While the article feels politically calculated (Obama certainly wrote it with an eye toward his legacy), he succeeds in providing a blueprint for how a president can act within the limits of his power and without triggering a partisan backlash, to reform a major function of government.