Thursday, May 04, 2017


Political Mayhem Thursday: Designed to Fail

Just up online (and forthcoming in print at the William and Mary Law Review) is a new article I co-authored with Rachel Barkow titled Designed to Fail: The President's Deference to the Department of Justice in Advancing Criminal Justice Reform.  You can download it here.

There is a lot packed into the article, but in a nutshell what we are saying is this: The Department of Justice was a significant drag on the Obama administration's efforts to address over-incarceration and other aspects of the criminal justice system. In the future, a progressive administration is going to have to acknowledge this and push for reform without deferring to the old heads at the DOJ, whose institutional interests almost always lie with the status quo. 

President Obama and Eric Holder made significant headway in criminal justice, but because they did not restructure things like the clemency process or negotiate legislation beyond the Fair Sentencing Act, those gains are going to quickly evaporate. Even before the Sentencing Commission, they pulled their punches and often fought against broader change. They were too often timid when they needed to be bold, and late when they needed to be early.  The price is being paid now, under an administration hostile to reform and eager to return to the failed policies of the 1980's and 90's.

It's a shame we have to rely on any president to undertake "criminal justice policymaking." Of course the president can, to a certain extent, set the tone and priorities at DOJ, but a huge chunk of criminal justice reform has to happen with the law itself. Apart from clemency--a unique and wholly executive feature of the Constitution--things like sentencing, compassionate release, and forensic science ought to be reformed by Congress. If only we could find one...
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