ALEX WHITING: Through Actions and Words, President Obama has Promoted Criminal Justice Reform

President Obama’s eight-year term as President has corresponded almost exactly with a dramatic change in the national conversation about criminal justice. After decades of a tough on crime political consensus in this country, sentiment has shifted during the Obama years towards a recognition of the problems of mass incarceration and racial injustice in our criminal justice system. To be sure, some advocates were at this place all along, while others arrived at it from both the left and right for a variety of reasons, whether moral, financial, ideological, political, criminological, or pragmatic.

President Obama’s role in this debate has been important but also necessarily limited. Only about 10% of the nation’s approximately 2.3 million prisoners are in the federal system, and therefore the problems of mass incarceration and racial bias are primarily state issues. Moreover, criminal justice in the federal system is largely an issue for the Attorney General, who enjoys considerable independence from political actors, including the President. Finally, even the political consensus surrounding criminal justice has not always been able to overcome the political stalemate that is Washington, and therefore the President has not always been able to push criminal justice reform through Congress.

Nonetheless, Obama succeeded in making criminal justice reform a priority of his presidency, and he used tools at his disposal, as well as his national voice, to effectuate change and to shape the conversation about criminal justice.

On the legislative front, Obama’s biggest achievement was the Fair Sentencing Act of 2010, which reduced the sentencing disparity between crack and powder cocaine. The war on crack was a critical component of the tough on crime era, but in time the harsh penalties for crack came to be seen as excessively punitive and racially discriminatory.

Much of the criminal justice work in the Obama administration was spearheaded by Eric Holder, Obama’s Attorney General during the first six years of his presidency. In 2013, Holder launched a “Smart on Crime” initiative which sought to focus prosecutions on the most serious cases, enhance strategic thinking in investigations and prosecutions, adjust charging and sentencing practices to encourage greater use of discretion, and improve re-entry programs. Specifically, Holder instructed federal prosecutors to seek mandatory minimum sentences only when warranted by the facts of the specific case. The Department of Justice’s (DOJ’s) Civil Rights Division has also played an important role investigating police departments under its pattern and practice authority, as well as targeting fees and fines and bail practices that unfairly disadvantage poor people and people of color. Finally, the DOJ’s Office of Justice Programs has sought to fund criminal justice reform initiatives at the state and local level. In particular, the Justice Reinvestment Initiative seeks to assist states to identify ways to save money in the criminal justice system and reinvest the funds in evidence-based programs to increase public safety. In this way, the DOJ can promote and shape reform efforts beyond the federal sphere.

President Obama also used his executive powers to advance criminal justice goals. He ended solitary confinement for juveniles in federal facilities, banned the “box” requiring disclosure of criminal records on federal job applications, and tightened background checks for gun purchases. In 2014, he created the President’s Task Force on 21st Century Policing to study policing across the country, develop best practices, and make recommendations. Obama also used his clemency authority robustly in the last years of his presidency, granting relief to 944 prisoners sentenced to terms of incarceration that far exceed what we would impose today.

Finally, the President sought to shape the national discourse through speeches and White House roundtable discussions on criminal justice reform. In 2015, he became the first sitting President to visit a federal prison. These interventions have promoted frank discussion about the problems of policing, mass incarceration, and racial inequity.

In all of these ways, the Obama administration pushed forward criminal justice reform, despite the federal government’s limited role in law enforcement. Perhaps even more importantly, through its actions and words, the administration has helped promote and shape a national conversation about the need for reform. This may ultimately be the President’s lasting legacy, as it has become clear that a sustained political commitment is required to tackle the problems of our current criminal justice system. Now that Donald Trump has been elected to succeed Obama, there will no longer be this commitment in the White House. Reformers will need to concentrate even more intensely on the state and local level, where the core of the problems exist, in order to achieve progress.

Alex Whiting
Professor of Practice
Harvard Law Schol

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