“Criminal justice reform has been a focus of my entire career”
January 5, 2017 5:38 PM   Subscribe

In a first for a sitting President, Barack Obama has published a 56-page paper/commentary in the Harvard Law Review: “The President’s Role in Advancing Criminal Justice Reform”

The section headings, for reference:
  1. The Urgent Need for Reform
  2. Reforming the Federal Criminal Justice System
    1. Achieving Reforms to Federal Charging and Sentencing Practices
      1. Charging Policies and “Smart on Crime.”
      2. Sentencing Reform Legislation.

    2. Advancing Federal Prison Reforms

    3. Focusing on Reentry

    4. Reinvigorating Clemency


  3. Tools and Actions to Drive State and Local Reforms
    1. Advancing Policing Reform
    2. Eliminating the Criminalization of Poverty
    3. Spurring State Sentencing Reform and Justice Reinvestment
    4. Keeping the Focus on Reform
    5. Promoting Data-Driven Solutions
    6. Highlighting Ways the Juvenile Justice System Falls Short
    7. Creating Opportunities Through the My Brother’s Keeper Initiative and the Council on Women and Girls

  4. Work Unfinished
    1. Pass Sentencing Reform Legislation
    2. Take Commonsense Steps to Reduce Gun Violence
    3. Address Opioid Misuse and Addictions as a Public Health Issue
    4. Strengthen Forensic Science and Identify Wrongful Convictions
    5. Improve Criminal Justice Data Collection
    6. Restore the Right to Vote to Those Who Have Repaid Their Debt to Society
    7. Make Better Use of Technology to Promote Trust in Law Enforcement
Conclusion


Relatedly, an October 2015 interview of Obama by Bill Keller of The Marshall Project on criminal justice issues.
posted by Going To Maine (51 comments total) 42 users marked this as a favorite
 
I will miss having a president that can write intelligently about topics that are important to himself and many other people.
posted by Mr.Encyclopedia at 5:47 PM on January 5, 2017 [86 favorites]


Wow. Was his agenda laid out like this anywhere else? This makes it really clear what he was trying to do.
posted by gusandrews at 5:54 PM on January 5, 2017


If anyone is curious, it is partway through the final word of "Achieving Reforms to Federal Charging and Sentencing Practices" that the 140-character limit is reached.
posted by ricochet biscuit at 5:55 PM on January 5, 2017 [99 favorites]


If anyone is curious, it is partway through the final word of "Achieving Reforms to Federal Charging and Sentencing Practices" that the 140-character limit is reached.

In the actual document, that would be:

Presidencies can exert substantial influence over the direction of the U.S. criminal justice system. Those privileged to serve as President
posted by Going To Maine at 6:02 PM on January 5, 2017 [2 favorites]


But too many, especially nonviolent drug offenders, serve unnecessarily long sentences.
...and later...
I asked my team to look more systematically at how clemency could be used to address particularly unjust sentences in individual cases...As of this writing, I have commuted the sentences of over 1000 individuals — more than the previous eleven Presidents combined.

That's praiseworthy, but didn't he have the power to unilaterally commute the sentences of every single nonviolent drug offender, one by one? Why focus on particular unjust cases rather than the overall, systematic oversentencing? What would have stopped him, other than the fact that he'd have broken his hand signing the paperwork?
posted by justsomebodythatyouusedtoknow at 6:06 PM on January 5, 2017 [9 favorites]


(Tho’ I suppose I would settle for Eliminating the Criminalization of Poverty. Pass Sentencing Reform Legislation. Address Opioid Misuse and Addictions as a Public Health Iss)
posted by Going To Maine at 6:06 PM on January 5, 2017


See also previously: Obama, Barack. "United States health care reform: progress to date and next steps." JAMA 316.5 (2016): 525-532.

If his next article is, like, a Nature article about him discovering a new species of antelope or a simplified proof of Fermat's Last Theorem in the Annals of Mathematics, I'm gonna friggin' lose it.
posted by mhum at 6:07 PM on January 5, 2017 [28 favorites]


In a first for a sitting President

Cannot access the article, but I assume they mean a first for the Law Review. It's the second paper published by a sitting president in a leading peer-reviewed journal, here's the previous one: http://doi.org/10.1001/jama.2016.9797
posted by effbot at 6:08 PM on January 5, 2017 [10 favorites]


That's praiseworthy, but didn't he have the power to unilaterally commute the sentences of every single nonviolent drug offender, one by one? Why focus on particular unjust cases rather than the overall, systematic oversentencing? What would have stopped him, other than the fact that he'd have broken his hand signing the paperwork?

It seems silly to note this at the present time, perhaps, but I’m reasonably confident that no president really wants to be know as “the one who freed all the druggies” leading into an election.
posted by Going To Maine at 6:09 PM on January 5, 2017 [3 favorites]


Someone should make a twitter bot that tweets out this whole thing @ trump over the next....15 days.
posted by lazaruslong at 6:42 PM on January 5, 2017 [27 favorites]


here's the previous one

I'm dying over the author affiliations on that paper.

Reminds me of this
posted by Dr. Twist at 6:44 PM on January 5, 2017 [12 favorites]


Barrack Obama has published a 56-page paper/commentary

That's... Barack Obama.
posted by kbanas at 6:50 PM on January 5, 2017


leading peer-reviewed journal

The HLR is prestigious within its precincts, but it ain't peer-reviewed.
posted by praemunire at 6:54 PM on January 5, 2017 [11 favorites]


"Barrack", when you want to call him "Barry" but realize the crowd is too formal for such casualness.
posted by JauntyFedora at 6:54 PM on January 5, 2017 [1 favorite]


Barrack Hoosier O'Bama
posted by DoctorFedora at 6:56 PM on January 5, 2017 [1 favorite]


In a first for a sitting President, Donald Trump has published a short autobiographical vignette in Penthouse Letters...
posted by ROU_Xenophobe at 7:05 PM on January 5, 2017 [38 favorites]


"Dear Penthouse: I never thought it would happen to me, but I've been elected president of the United States of America."
posted by DoctorFedora at 7:07 PM on January 5, 2017 [62 favorites]


Any chance he'll commute Chelsea Manning's sentence? I noticed the petition reached 100k signatures, which means the White House will issue a response, right?
posted by CheeseDigestsAll at 7:29 PM on January 5, 2017 [3 favorites]


Classic that this shit has ballooned to 56 pages. Get an editor dude
posted by Rock 'em Sock 'em at 7:29 PM on January 5, 2017 [3 favorites]


no president really wants to be know as “the one who freed all the druggies”
Too bad. Marijuana convictions are horrible and needless. In addition to commuting many more sentences, he could have also just gone ahead and legalized marijuana, which is used to jail countless young black men in this country. I am deeply saddened by his "rules for radicals" presidential method. He could have done so much more to reform criminal justice, but concerns about "legacy" seem to once again get in the way of true progress.
posted by sockermom at 7:39 PM on January 5, 2017 [5 favorites]


Any chance he'll commute Chelsea Manning's sentence? I noticed the petition reached 100k signatures, which means the White House will issue a response, right?

People who leak confidential documents to the organization that collaborated with Russia to make Trump's election happen are probably not high on the list of priorities. (Besides, the Obama administration has been generally hard on leakers of all stripes.)

More generally, though, Manning's particular case is pretty niche - she doesn't really epitomize the systemic issues against which Obama is writing and against which he has tried to work.
posted by Going To Maine at 7:42 PM on January 5, 2017 [4 favorites]


[Corrected spelling of Obama's name.]
posted by Eyebrows McGee (staff) at 7:46 PM on January 5, 2017 [1 favorite]


I actually find this disappointing and sadly symbolic of many of my dissatisfactions with what he has accomplished (or rather not accomplished) during his presidency. While he (well, mostly some of his staffers) made the time to put together this thoughtful, measured document, he wasn't focusing on developing the local candidates and party apparatuses that are necessary to make and secure the large changes that he and most everyone on this thread agree would make our nation's system more just.
posted by twsf at 7:53 PM on January 5, 2017 [12 favorites]


He could have done so much more to reform criminal justice, but concerns about "legacy" seem to once again get in the way of true progress.

I’m not convinced that Obama held back because of concerns about “legacy”. Indeed, as was decently put by Ta-Nehisi Coates in his recent article on Obama (which touches on some of these criminal justice themes), these are simply the measures in which Obama believes. He isn’t going to destroy all anti-drug legislation all at once because that isn’t who he is or what he thinks is the right strategy. That isn’t an argument for or against that position - rather, it’s an argument that assuming that he is somehow artificially constrained from doing what he thinks is right is a misreading of the man.

Indeed, we can mourn Obama’s legacy here for not being radical enough, but it’s worth noting that there’s been a reasonable strain of post-election critique that has argued that Obama has doubled down on a number of autocratic uses of Presidential power to get around Congress that has helped to magnify the authority that Trump will have coming into office. (This was fine with many of us pre-election, but in the harsh reality of what the nation is capable/incapable of electing, perhaps we are collectively a bit sad about that degree of power.)

I can’t track down the source - TAL? Some other NPR program?- but there was a story about how, near day one of his election, GWB had advised Obama to not get backed up with commuting sentences. They’d left it off to the last minute, and it had become a mess. Well, Obama swore he’d be better about it, but they left it to the last minute again. He’s commuted more sentences than any other President, but it’s still waaaaay less than they’d hoped. The imprisoned, alas, are the last to benefit.
posted by Going To Maine at 8:10 PM on January 5, 2017 [10 favorites]


I actually find this disappointing and sadly symbolic of many of my dissatisfactions with what he has accomplished (or rather not accomplished) during his presidency. While he (well, mostly some of his staffers) made the time to put together this thoughtful, measured document, he wasn't focusing on developing the local candidates and party apparatuses that are necessary to make and secure the large changes that he and most everyone on this thread agree would make our nation's system more just.

Imagine if, instead of writing this, they had been making recess appointments…
posted by Going To Maine at 8:11 PM on January 5, 2017 [4 favorites]


no president really wants to be know as “the one who freed all the druggies”

I’m not convinced that Obama held back because of concerns about “legacy”.


Which one is it? I'm also not convinced that this is entirely about legacy, but if you run as the progressive candidate on a platform of hope and change and then turn out to just push forth the status quo you're damn right you weren't radical enough, and that should definitely be mourned.
posted by sockermom at 8:19 PM on January 5, 2017 [2 favorites]


as O notes, the federal criminal justice system is important, but the state courts are where the vast, vast majority of criminal justice work gets done. it is unfair to blame him for not doing more to change systems not under his authority.
posted by wibari at 8:35 PM on January 5, 2017 [2 favorites]


no president really wants to be know as “the one who freed all the druggies”

I’m not convinced that Obama held back because of concerns about “legacy”.

Which one is it? I'm also not convinced that this is entirely about legacy, but if you run as the progressive candidate on a platform of hope and change and then turn out to just push forth the status quo you're damn right you weren't radical enough, and that should definitely be mourned.

It’s true! I’m having it both ways here, but I also think both things are true. I lean more toward the latter: he’s sincerely for the a more gradual solution than some kind of back door action to free all imprisoned drug users, but also thinks that would be terrible strategy. It was clear back in 2008 in my opinion that, despite the catch-phrases, Obama was established as a left Democrat but no radical. Also this was surely apparent by 2012! (There are plenty of theories about one reason that the primary fight in 2008 was so fraught relative to this year’s was that Obama and Clinton were running on very similar platforms.)
posted by Going To Maine at 8:36 PM on January 5, 2017 [1 favorite]


I just wanna say, Ellison is right that we can win by mobilizing new voters - there are a shit ton of them out there - but this strategy won't win without Dean's 50 State strategy, in which no election, at any level, must be uncontested without a D candidate, even if they're imperfect.

Synthesis, people, synthesis.
posted by Slap*Happy at 9:17 PM on January 5, 2017 [1 favorite]


Step one: In the face of unconstitutional obstructionism, just fucking seat Merrick Garland despite the nomination expiring.
posted by klangklangston at 9:22 PM on January 5, 2017 [2 favorites]


This strategy won't win without Dean's 50 State strategy, in which no election, at any level, must be uncontested without a D candidate, even if they're imperfect.

That's not a strategy, it's the political equivalent of remembering to tie your shoelaces. The idea that a national party wouldn't run a fairly serious candidate in every available race is baffling to my foreign eyes.
posted by justsomebodythatyouusedtoknow at 10:51 PM on January 5, 2017 [6 favorites]


The idea that a national party wouldn't run a fairly serious candidate in every available race is baffling to my foreign eyes.

The Republicans didn't have anyone running for the open Senate seat in California this year.
posted by mr_roboto at 11:01 PM on January 5, 2017


That's praiseworthy, but didn't he have the power to unilaterally commute the sentences of every single nonviolent drug offender, one by one?


No. The president only has the power to pardon federally convicted defendants. The vast majority of drug offenders are convicted in state courts.
posted by mikeand1 at 11:40 PM on January 5, 2017 [10 favorites]


cites own book in first footnote; clearly gearing up for future back in academia

source: i am an academic
posted by modernnomad at 11:48 PM on January 5, 2017 [19 favorites]


Step one: In the face of unconstitutional obstructionism, just fucking seat Merrick Garland despite the nomination expiring.

k so the obstructionism isnt actually unconstitutional but, this would be pretty fucking unconstitutional
posted by Rock 'em Sock 'em at 12:00 AM on January 6, 2017


The Republicans didn't have anyone running for the open Senate seat in California this year.

They did run somebody. California's Primary system is set up so that the only people on the General election ballot for every office other than President are the top two vote getters in the Primary, regardless of party. So there were a lot of congressional and state districts where you had two Republicans, 2 Democrats, or sometimes a Green.

Although I have no clue if it was a competitive Republican.
posted by Badgermann at 6:10 AM on January 6, 2017


The PEOTUS also released some writing today. It was a series of tweets about the merits of Arnold Schwarzenegger in The Apprentice Season 14.
posted by DirtyOldTown at 7:45 AM on January 6, 2017 [4 favorites]


In addition to commuting many more sentences, he could have also just gone ahead and legalized marijuana, which is used to jail countless young black men in this country.

While he made the time to put together this thoughtful, measured document, he wasn't focusing on developing the local candidates and party apparatuses that are necessary to make and secure the large changes that he and most everyone on this thread agree would make our nation's system more just.

Imagine if, instead of writing this, they had been making recess appointments…

how bout y'all put a "tried to" in front of all of those things

He can't just legalize marijuana. He can write a memo to the DEA telling them to consider changing the classification of marijuana. It would have to go through the DEA's process of internal review and public comment, and the answer might well come back no.

It also wouldn't take any of his own time, or any of his staffers' time, for longer than it takes to write that memo.

The president doesn't work with the DNC and he doesn't make any of their decisions. For local candidates, the most he would do is tell them "hey we should focus on local candidates" and the DNC would first a) decide whether they wanted to and b) decide how that would actually happen and c) do that. Or not do that. But none of that is the president's fucking job, and it wouldn't take any of his own staffers' time because it's not their fucking job either.

The big B.O. has more influence with the DNC than most presidents because of his stature as Barack Obama, amazing dude, but that doesn't have much to do with his office as president. And that stature won't be lost when he leaves office.

The Senate makes its own rules for when it's in recess, and they often hold pro forma sessions specifically to block recess appointments.
posted by Rainbo Vagrant at 12:20 PM on January 6, 2017 [1 favorite]


The president can, however, make recess appointments to a variety of federal positions. Instead, those vacancies will now be filled by PEOTUS.
posted by Going To Maine at 12:28 PM on January 6, 2017


Oops, on preview...
posted by Going To Maine at 12:29 PM on January 6, 2017


The Republicans didn't have anyone running for the open Senate seat in California this year.

Fairly certain that they did, the candidate just didn't make it to the playoffs general election.

In Virginia, somewhat ironically, the Republicans may actually lose control of the state senate because there are two of them (one as an independent, of course, but AFAICT he's a pretty standard Republican) running against each other in a special election, splitting the vote.

I'm sure there are state and local elections where there aren't R candidates on the ballot, but in general they seem to have a very deep bench nationally.

For criminal justice reform, it's arguably the state-level races that are more important than national ones, since the prison population is dominated by people put there as a result of state laws.
posted by Kadin2048 at 12:48 PM on January 6, 2017


"The Republicans didn't have anyone running for the open Senate seat in California this year."

They had several, first in the jungle primary (where none of them got enough votes), then as Sanchez, a Dem who ran right.

"k so the obstructionism isnt actually unconstitutional but, this would be pretty fucking unconstitutional"

The obstructionism is unconstitutional, to the point that the Senate abandoned their duty to advise and consent. Seating Garland, especially after a pro-forma renomination, wouldn't be unconstitutional — it would be aconstitutional, and anti-institutional. But as the matter would then go to the Supreme Court, inevitably, and Garland would recuse himself, it'd be another 4-4 toss-up. Obama didn't want to damage the institution like that, which is understandable, but he's then trading that for greater longterm damage.
posted by klangklangston at 2:49 PM on January 6, 2017


Sigh. He is My President, and I will miss him.
posted by likeatoaster at 4:08 PM on January 6, 2017


make and secure the large changes that he and most everyone on this thread agree would make our nation's system more just.

also not for nothing but it's pretty easy to talk a big game about being against mass incarceration, but threads about actual criminal justice and crimes go over extremely terribly here, unless you're talking about marijuana, which is not actually the vast majority of people incarcerated (or even that many people incarcerated, unless they had underlying offenses putting them on probation). Barack Obama is at least offering policy solutions -- which is better than the hot mess threads we have here any time basically any violent offense is discussed in anything other than the abstract.
posted by likeatoaster at 4:22 PM on January 6, 2017


The obstructionism is unconstitutional, to the point that the Senate abandoned their duty to advise and consent. Seating Garland, especially after a pro-forma renomination, wouldn't be unconstitutional — it would be aconstitutional, and anti-institutional. But as the matter would then go to the Supreme Court, inevitably, and Garland would recuse himself, it'd be another 4-4 toss-up. Obama didn't want to damage the institution like that, which is understandable, but he's then trading that for greater longterm damage.


this makes no sense, you're confusing your preferences w/the actual law
posted by Rock 'em Sock 'em at 8:58 PM on January 6, 2017


"this makes no sense, you're confusing your preferences w/the actual law"

You're confusing "would force a constitutional crisis" with "illegal." Seating Garland would force a constitutional crisis. But there is an argument that the Senate's authority isn't sufficient to refuse to seat a judge by denying the judge a vote (ironically, an originalist one). Ultimately, the constitutional office that would decide whether or not seating Garland would be legal under the constitution is the Supreme Court. As the court is currently 4-4 on most controversies, it's entirely possible that they'd end up allowing Garland to be seated as part of a decision.

Though at that point, there's no reason Trump et al. couldn't change the statutory limits and allow the incoming president to appoint 35 new judges, or however many he wanted.
posted by klangklangston at 10:55 PM on January 7, 2017


All the existing caselaw on this topic points to the president requiring the consent of the senate for appointments. Period. Not "if the senate is behaving itself," not "if the senate isn't full of jackasses," not "if the senate cares." The president requires the consent of the senate. It wouldn't be 4-4, either. It would be 8-0 against seating him, just like NLRB v Noel Canning was 9-0. The Supreme Court does not fuck around when it comes to maintaining the traditional balance of powers between the political branches.
posted by Rock 'em Sock 'em at 4:06 PM on January 8, 2017 [1 favorite]


Though at that point, there's no reason Trump et al. couldn't change the statutory limits and allow the incoming president to appoint 35 new judges, or however many he wanted.

Right, and that's the solid practical argument that sometimes just letting shit not happen is better than the alternative of strong-arming everything, just because we happen to be in power. I mean Obama isn't even going to be in power in a couple of weeks, why push for more exec. power right now? Seems foolish and short-sighted
posted by Rock 'em Sock 'em at 5:07 PM on January 8, 2017


"All the existing caselaw on this topic points to the president requiring the consent of the senate for appointments. Period. Not "if the senate is behaving itself," not "if the senate isn't full of jackasses," not "if the senate cares." The president requires the consent of the senate. It wouldn't be 4-4, either. It would be 8-0 against seating him, just like NLRB v Noel Canning was 9-0. The Supreme Court does not fuck around when it comes to maintaining the traditional balance of powers between the political branches."

Part of the argument is that by failing to hold a vote or object, the Senate is consenting. It's moot now, obviously, but this Yale Law Review article (pdf) lays out the case. Your thundering certainty is not a substitute for actually considering the argument, and that article includes full citations of relevant case law.

Right, and that's the solid practical argument that sometimes just letting shit not happen is better than the alternative of strong-arming everything, just because we happen to be in power. I mean Obama isn't even going to be in power in a couple of weeks, why push for more exec. power right now? Seems foolish and short-sighted"

In that case, the argument would have to be whether a Trump presidency with the increased executive power but a 5-4 opposition in the Supreme Court would do more damage and more long-lasting damage than a Trump presidency with a 5-4 majority on the SCOTUS. And given that what has traditionally restrained governmental power is institutional norms, and the incoming administration has been deliberately, openly contemptuous of those norms, it seems like there's little benefit in adhering to norms you know that they will disregard.
posted by klangklangston at 8:03 PM on January 11, 2017


[A couple deleted. Just discuss the points you'd like to make, and don't get into a childish slapfest.]
posted by taz (staff) at 12:13 AM on January 16, 2017


Any chance he'll commute Chelsea Manning's sentence? I noticed the petition reached 100k signatures, which means the White House will issue a response, right?

People who leak confidential documents to the organization that collaborated with Russia to make Trump's election happen are probably not high on the list of priorities. (Besides, the Obama administration has been generally hard on leakers of all stripes.)

This and the Trump election mean that my ability to predicate political events remains absolutely uncanny…
posted by Going To Maine at 1:33 PM on January 17, 2017


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