Designed to Fail: The President's Deference to the Department of Justice in Advancing Criminal Justice Reform

By Barkow, Rachel E.; Osler, Mark | William and Mary Law Review, November 2017 | Go to article overview

Designed to Fail: The President's Deference to the Department of Justice in Advancing Criminal Justice Reform


Barkow, Rachel E., Osler, Mark, William and Mary Law Review


                   TABLE OF CONTENTS  INTRODUCTION                                                   390   I. THE DEPARTMENT OF JUSTICE AGENDA                          395      A. The Prosecutorial Mindset                              397      B. Structural Factors Creating Bias Against Reform        400  II. THE DEPARTMENT OF JUSTICE RESPONSE TO REFORM      PROPOSALS DURING THE OBAMA ADMINISTRATION                 404      A. Department of Justice Resistance to Criminal Justice         Reforms                                                405         1. Sentencing Reform                                   406         2. Clemency                                            425         3. Compassionate Release                               441         4. Forensic Science                                    449      B. The Department of Justice's More Aggressive Pursuit         of State Reforms                                       454 III. REDESIGNING THE EXECUTIVE BRANCH AND USING THE      APPOINTMENT POWER FOR INSTITUTIONAL REFORM                456      A. Presidential Criminal Justice Advisory Commission      459      B. Presidential Clemency Board                            461      C. Applying Office of Information and Regulatory Affairs         Review to Criminal Justice                             463      D. Appointments                                           466         1. Department of Justice Appointments                  467         2. The Judicial Branch                                 471 CONCLUSION                                                     473 

INTRODUCTION

If you follow criminal justice policy in the United States, two themes dominate the discourse of the past several years. First, large portions of society have awakened to America's record-breaking levels of mass incarceration and criminalization. One out of every three adults possesses a criminal record, (1) and our levels of incarceration have no equal anywhere else in the world. (2) Second, and relatedly, there has been a bipartisan call to reform this state of affairs because it is not necessary for--and often undermines--public safety and because its costs outweigh its benefits. (3) News articles continually tout criminal justice reform as one of the few areas to bring together many Republicans and Democrats, (4) even in Congress where common ground is hard to find. (5)

If you move beyond the rhetoric and focus on the reality, however, not much has changed, even during the Obama Administration when the President had a stated commitment to getting smart on crime and rolling back harsh punishments. Indeed, President Obama's support of reform was so strong that in the waning days of his time in office, he published a law review article entitled The President's Role in Advancing Criminal Law Reform, which highlighted his accomplishments and what he saw as "the tools Presidents can use to effect meaningful change throughout the system." (6) Yet his achievements in this area were modest at best.

Because criminal justice is "administered at all levels of government and shaped by a range of actors," (7) the federal government can only do so much to tackle the broad tragedy of mass incarceration. But the federal system is one of the largest jurisdictions in terms of total imprisonment, (8) and it also often sets an example for states through its policies. Many commentators are quick to place most of the blame with Congress for stalled progress, (9) but significant criminal law reforms can occur with the use of executive power alone. Gains were modest under President Obama not because he lacked the power to do more, but because he followed an institutional model that was designed to fail. (10) Obama's failure to accomplish more substantial reform was largely rooted in the fact that his efforts were less about the President's role in advancing criminal law reform and more about the Department of Justice's role. …

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