Rants, mumbling, repressed memories, recipes, and haiku from a professor at the University of St. Thomas Law School.
Friday, June 30, 2017
Haiku Friday: Business!
Today I have my first piece in a business magazine, Forbes (you can read it here). Business can be a lot of things: the corner store, drugs, a stock purchase. Let's haiku about it all this week. Here, I will go first:
On Jefferson Ave
Most intriguing business?
Simple: "Shoeshine and Worms."
Now it is your turn! Just use the 5/7/5 syllable formula and have some fun!
There are big stories and little ones. Donald Trump faking a Time cover (at right) is a little one. Health care is a big one.
The Republicans in the Senate are struggling mightily to find a way to undo at least part of the Affordable Care Act without losing three or more of their members. There is a lot of reporting on this, but I want to just lay out three simple facts:
1) The problem with taking apart the ACA in pieces is that it was carefully constructed to work as a whole; each component relies on the existence of others. Pre-existing conditions are covered, for example, but the costs associated with that (and the uncertainty) are offset with the mandate that everyone buy insurance. That allows the insurers to spread the costs of the sick people. Take away the mandate and keep the requirement to cover pre-existing conditions, and the economic model falls apart. Similarly, expanded Medicare and subsidies for private insurance are paid for with higher taxes. Ditch the taxes but not the expansion and the subsidies, and you blow out the deficit.
2) Our current health care system is a mishmash of private insurance, no insurance (where costs are shifted to providers), and state and federal programs. The result is inefficient and uneven. Our health outcomes are terrible relative to other countries, too-- we are not getting good outcomes overall.
3) Changing the health care system back and forth is not good for market stability. The benefits now being reconsidered were only granted a few years ago, after all! If we are going to remake this system, the answer has to be big, bipartisan, and broad. That will take time, transparency and civil discussion, which has been the recipe of neither party of late...
Looking for something good to read? I'd recommend this intriguing piece in Sojourners. It's great to see attention swing back to the death penalty--and especially the link between faith and the death penalty.
The lady who has been cutting my hair apparently quit the business (not because of me, hopefully) and it might be time to go for a new look. I'm open to suggestions. It might be good to go for something retro, too. Maybe a return to my cut from the days back at Barnes school?
That's probably easy to do. For a more distinctive look, though, I might want to go all in and return to this style I had in college (and I think I still have those shorts somethere...):
As a third alternative, I could just not care and wear a goofy hat:
So let me know your thoughts, since someone is going to have to look at it....
My dad painted the piece pictured at the right. When I see it at my parents house, it reminds me of a few months long ago.
In the summer of 1988, I was lonely and alone. Few people
suspected that, I suppose; at the time I was a Yale Law student with a great
internship living in the teeming city of Chicago, which comes thrillingly to life
in the summer. I was one of the young people striding down Michigan Avenue to work in
the morning or wandering through Lincoln Park on a Saturday, but it was a
strangely solitary time. It was also, in retrospect, one of the most positive
and important moments in my life.
I was working at the U.S. Attorney's Office as a summer
intern, and it was a fascinating job that was the very beginning of what has
become my life's work. All that has come after-- pursuing Dan Freed to let me
into his sentencing class, my own work as an Assistant US Attorney, my choice
to teach criminal law, and the advocacy that has come with it-- has been a walk
that began with the steps I took that summer. Every day was entrancing, and I
stayed at work as long as I could, doing whatever was possible to dig into cases.
Eventually, everyone left, and I did too, out into the warm dusk and the crowds
on the city sidewalks going off to dinner or a show.
There were other interns, of course, but they seemed to have
their own lives that they returned to at the end of the day. I never asked any
of them to go to a ball game or dinner. I probably could not have afforded it
anyways; I had a meager salary that was funded by other Yale Law students, a
portion of what they made working for law firms (and something for which I have
always been grateful to those other law students). At the end of the day I
would walk out of the federal building and down Michigan Avenue to Abbott Hall,
an old Northwestern dorm that had a certain charm but no air conditioning.
That mattered, too. 1988 was a brutally hot summer in Chicago,
with several days in a row over 100 degrees. Walking back in my suit (I had two that I
alternated) I arrived in my room panting for air. Most days, I would put on my
bathing suit and a t-shirt and walk a few blocks over to Oak Street Beach and
then literally walk into the lake. Others were doing the same thing, just to
cool off, a herd of motionless Brontosauri standing in the water looking at
each other, and off to the distance at the big blue lake with my home in
Michigan somewhere unseen on the other side.
It did occur to me that I should be social, that perhaps I
should eat dinner with another person, sitting down in a chair at a table, rather than gulping it while standing up outside of a hot dog stand. I'm an introvert, though, and
those moments are hard for me. I find it almost impossible to walk up to
someone I don't know and introduce myself; it just seems intrusive and risky.
And Chicago in 1988 was composed of two sets of people: me, and people I did
Sometimes, I would check out the Chicago Reader and find something
fun to do, maybe a band playing at a bar. After dark I would walk, sometimes
for miles (I didn't have a car or a bus pass) and find the joint, then walk
past it on the sidewalk, peering in the windows or through the propped-open
door. Then I would walk past it going the other way, getting a different angle.
Then I would walk home, never having gotten up the courage to go in, too
intimidated by the bouncer and laughing people in groups inside. Back in my hot
room, I wondered what I was missing. I wondered, too, how all these people knew
each other, how they had met, what the secret might be.
I went to church, a big cathedral full of people. I sat in
the back by myself, a regular attender for those weeks. The pews would fill as
I studiously pored over the printed liturgy. People would sit in front of and
beside me, and then the choir would warm up behind me and march past, two by
two. At the passing of the peace I shook hands dutifully. "Peace of
Christ," I would say, sincerely. And then I would go home, change, and
stand in the lake.
It wouldn't be true to say that I met no one that summer.
Late in the game, I got to know a guy living in my dorm, an MIT student who
worked at a chocolate factory. After winning a trial, one of the AUSA's and I
went on an epic bender that was memorialized with a series of images on my camera
that included some kind of energetic karaoke with a group of Korean women at a bar of dubious reputation. But,
mostly, I was alone.
In retrospect, that was ok.I found what I loved in a real and deep way that summer, the thing that
would shape my place in this world up to this very moment. Those lonely days
and the risk that brought them were a small price for all the remarkable things
that have followed from them for me-- a job, a life, a wealth of memories, that
is fulfilling and whole and real.
But, there is this: I probably should be kinder to the guy
in church, sitting alone, intently studying the printed liturgy because that is
what is there to study intently.
Haiku Friday: The song of the summer-- you pick the summer!
Beaches, pools, heat, hamburgers... and music. Summer has its own music, and it seems like the right song can trigger memories of summers long ago and not so long ago.
For me, when I hear Bruce Springsteen's "Dancing in the Dark," I can't help but remember 1984. I was in college, and that summer I worked in a beach town-- Rehobeth Beach, Delaware-- in a restaurant. I loved that summer, and the days spent walking on the boardwalk and taking it all in. I lived in a ramshackle house with friends from school, and that song was on in the background a lot of the time. I had no idea what I was doing; that was the summer that I was, among other things, America's worst bartender. I didn't even have a real bathing suit, just some old Adidas shorts and a sack full of t-shirts. But what more did I need?
I was out of town for most of the trial of Geronimo Yanez, the police officer who shot Philandro Castile during a traffic stop in Minnesota. I've refrained from saying much about it since I didn't follow the trial.
Now the dash cam video of the incident has been made public and I have included it above. Of course, it does not show everything; most importantly, it doesn't show what Castile was doing during the interaction.
A few things surprised me about the video. First, it happened very fast, and escalated in an instant from a calm discussion to rapid-fire shooting into the car. Second, unless Castile managed to say "I have a firearm" and simultaneously get it out and point it at the officer, it's hard to see how this shooting was justified.
I didn't see all the evidence in the trial. I am loath to second-guess juries. But I will say this: There is racism in our society. That means, necessarily, that every institution in our society bears some mark of that, including the police. The only way to rid ourselves of it is to pro-actively move against those situations where it does damage. That includes over-policing, where officers, at their discretion, pull over cars because they (for example) have one of three brake lights out. There really are more important things to do.
Today I am heading out to Phoenix, Arizona to talk to a conference for those who defend death penalty cases. My subject is religious jurors and how to relate to them. It's not something I have spoken about before specifically, and putting together my materials and powerpoint has been a fascinating exercise. On Monday, Susan Stabile popped into my office, and I asked her what she thought I should talk about.
"Reconciliation, reformation, and redemption," she said, and she was right. When we execute someone, we lose the ability to heal anything. The idea that it "brings closure" to victims is just not true, according to the people I know who have suffered the loss of a loved one to murder. They don't want to "close out" their feelings-- even the grief-- about the person they loved. Sure, some do want retribution, but that is a different thing.
In the course of my preparations, I created a list of Bible verses relevant to the issue, and was surprised how long it was. Some augured in favor of capital punishment, and some against. I also catalogued the position of various denominations on the issue. One of the more surprising ones, and one of the truest, was from the National Association of Evangelicals:
Evangelical Christians differ in their
beliefs about capital punishment, often citing strong biblical and
theological reasons either for the just character of the death penalty
in extreme cases or for the sacredness of all life, including the lives
of those who perpetrate serious crimes and yet have the potential for
repentance and reformation. We affirm the conscientious commitment of
both streams of Christian ethical thought....
We affirm with the Apostle Paul that governments are called to
administer justice to protect citizens and preserve the common good. As
citizens of the United States, we are grateful for the degree of public
safety most Americans experience and the rules of due process embodied,
if imperfectly implemented, in our legal system. American justice
appears admirable when compared to that of many other countries where
tyranny and corruption reign. Unfortunately, all human systems are fallible. Nonpartisan studies of
the death penalty have identified systemic problems in the United
States. These include eyewitness error, coerced confessions,
prosecutorial misconduct, racial disparities, incompetent counsel,
inadequate instruction to juries, judges who override juries that do not
vote for the death penalty, and improper sentencing of those who lack
the mental capacity to understand their crime. In the first decade of the 21st century, 258 wrongfully convicted
people have been exonerated due to the introduction of DNA evidence.
Twenty of those were serving time on death row, and another 16 had been
convicted of a capital crime but not sentenced to death. As evangelicals, we believe that moral revulsion or distaste for the
death penalty is not a sufficient reason to oppose it. But leaders from
various parts of the evangelical family have made a biblical and
theological case either against the death penalty or against its
continued use in a society where biblical standards of justice are
difficult to reach. In Mosaic Law, standards of evidence were stringent,
requiring a minimum of two eyewitnesses who were willing to stake their
own lives on the truthfulness of their testimony and who would initiate
the execution by “casting the first stone.” Circumstantial evidence was
not permitted. The contemporary American system is unlikely to reach
such standards of evidence, and given the utter seriousness of capital
crimes, the alarming frequency of post-conviction exonerations leads to
calls for radical reform.... Despite differing views on capital punishment, evangelicals are
united in calling for reform to our criminal justice system. Such reform
should improve public safety, provide restitution to victims,
rehabilitate and restore offenders, and eliminate racial and
socio-economic inequities in law enforcement, prosecution and sentencing
Though it does not embody my own beliefs, that statement strikes me as particularly well-considered and well-written.
I'm pretty tired of headlines announcing that millenials-- the generation that came of age after 2000-- have "killed" something. The most recent "news" is that millenials have killed retailer J. Crew.
Millenials haven't killed anything. If they don't shop at J. Crew, it is probably because J. Crew is selling clothes they don't want. As the text of the linked story actually recognizes, that is the fault of the retailer, not the customer. To the degree that millenials spend less money overall than other generations, that is largely because they carry a lot of student debt, graduated into a lousy economy, and face challenges with decaying physical and social structure, all of which were problems created by the generations ahead of them (including mine).
I see millenials every day in class and elsewhere, and from what I can see they are hard-working, socially engaged, and if anything too competitive. Derided as the "everybody gets a trophy" generation, the truth is that they seem to be to be pretty resilient in the post-recession world they are entering as adults.
The truth is that generational generalizations are usually blunt instruments poorly aimed. We are a nation of individuals, and the plain truth is that there are plenty of slackers in the baby boom generation, and some remarkable entrepreneurs among the millenials. The truth is that J. Crew committed suicide. Don't believe me? Then maybe you will want to buy these pants from them:
Our kids are especially vulnerable as they take their long road to emotional and physical maturity. As members of the human race we use up a quarter of our lives figuring things out, longer even than those much larger than we are like the blue whale.
Our instincts are to shield, nurture, educate and protect our children. We are at a crossroads right now. We are being told it is OK to be concerned with our own safety and enrichment, but we don’t have an equal fervor to invest in our nation’s children, especially in the music and the arts.... Wayne Shorter had just been in Detroit in his role as the Detroit Jazz Festival’s Resident Artist for 2017. This remarkable jazz saxophonist offered to be part of a master class held at the Dirty Dog Jazz Café. When he entered the club he was greeted with awe and respect. Great artists can be a little intimidating. Any intimidation melted away under the weight of Wayne’s manner and words, while the awe and respect carried on throughout the evening. At this moment in his life Wayne Shorter has little to prove. He still can’t enter a room without having something to say that needs to be said. Wayne came into the room where the young musicians were preparing to play and sat down in a chair facing them. Without speaking he waved to them to start playing. While they played he did what jazz artists do best. He listened. He responded to what he just heard by saying that it is what you personally bring to the gig that is more important than your instrument and all your newest tricks. He told them to live life so that they would have something to say and know when it is appropriate to say it. They learned that their music would be only as good and as big as their lives.
I love that last part, where he hears what Wayne Shorter really meant. That's what artists do. I remember once he told me that a good painting will represent the truth of a subject better than a photograph would. I didn't understand what he meant then, but I do now.
What a lucky son I am, to have both of my parents be people who continue to see and learn and share.
Yesterday I was at Harvard Law School to speak on a panel about prosecutors and the need for reform. Just as we were finishing, the news broke from back home in Minneapolis that the jury had come back in the manslaughter case involving police officer Jeronimo Yanez, who shot motorist Philandro Castile to death during a traffic stop.
The jury, after five days of deliberation, came back with a not guilty verdict.
I didn't follow the trial, largely because I have been out of town. I don't know what evidence was presented, and what defense was advanced. I do know that I lot of people I respect are upset about the verdict.
The prosecutor in this case, Ramsey County DA John Choi, did what could be done-- his office took the case to trial and seemed to vigorously pursue the charge.
Generally, I am deeply troubled by the use of lethal force by the police. Too often the cost is unconscionably hight-- death-- in cases where either officer safety was not genuinely at issue or there could have been other ways to secure officer safety. Our society needs to talk about these hard questions, and think about equipping our police with different tactics, weapons, and knowledge to prevent tragedies like the Castile case from happening. Part of that needs to be an explicit discussion of race.
I know that a lot of people would like to simply conclude that racism does not come into play in police shootings. But... wouldn't we all agree that there is still racism in the US? And if that is true, must at least some of it infect police forces, given how many police officers we have in the US? It is naive to think there is no racism in US policing. And if it is there-- and it is-- we must find it and root it out.
Haiku Friday: The nicest thing anyone ever said to you
President Trump's first cabinet meeting featured him saying nice things about himself, followed by the members of the cabinet saying nice things about him. I'll be honest: it seemed a little bit staged, maybe.
But sometimes people say something kind that goes right to the soul and warms it up. Perhaps you are someone with the gift of saying that-- if so, thanks on behalf of a grateful world! We need that. Let's blog about those sincere, true, wonderful things people can say to encourage or restore or love. Here, I will go first:
I was a small boy
And he was the Principal
I had his birthday!
Now it is your turn-- just use the 5/7/5 syllable pattern, and have some fun!
Political Mayhem Thursday: When Politics Matters Too Much
Yesterday, the Washington Post reported that President Trump is now under investigation for obstruction of justice. And that was only the second biggest story out of DC.
The biggest was the horrible story of a Trump-hating ideologue from Illinois shooting up a baseball practice for Congressional Republicans. The shooter seriously injured Majority Whip Steve Scalise and others.
A mind that concludes that the right thing to do is to take an assault rifle and shoot a bunch of people practicing baseball, because of a political situation, is a mind that is taking politics way too seriously. Yes, political decisions have consequences; I not only know that, but it has been at the center of my work for a while. But for nearly all of us the decisions we make will have a far greater impact on our lives than the decisions a politician makes. One of the costs of obsessing over politics is that this truth can get lost, and people start to act like they don't have agency over their own lives.
Do I think the administration is a mess in many ways? Yes. I've written about that.
Do I think there could be a justification for what happened in Washington yesterday, or anything like it? No way.
It's an important topic, and I am really going to enjoy hearing the other speakers and catching up with Prof. Nancy Gertner, who is moderating my panel. I'll also try to circle back around to some of my favorite haunts in the area and eat some of that seafood that I just don't trust in Minnesota...
Yesterday, art collector Agnes Gund announced something amazing: She was selling a single painting-- Roy Lichtenstein's "Masterpiece"-- and donating $100,000,000 of the proceeds to the fight against mass incarceration in the United States.
One worthy recipient will apparently be Bryan Stevenson's Equal Justice Initiative. He had this to say in the Times yesterday:
“There’s long been this criticism that people who have the means to
acquire fine art are allowed to surround themselves with beautiful
things while they are unwilling to look at the ugly realities that
sometimes shape a community or a culture or a country,” said Bryan
Stevenson, the founder and executive director of the Equal Justice
Initiative. “Using this art to actually respond to over-incarceration or
racial inequality or social injustice is a powerful idea.”
Another knowing commenter had this to say:
The outcome is positive, surely, but still I can't get past the idea that a society that relies -- for funding the improvement of one of the most basic governmental functions -- on a good-hearted woman's decision to sell a silly cartoon dashed off in a morning (forgive me, fans of Lichtenstein and or the "free market") for $165 million is a society whose priorities are so sick and fundamentally twisted that it can't be saved by any amount of private donations.
From my perspective, there is something wonderful embedded in this. I am the son of an artist, after all (and you should check out my dad's blog this week, which features the photo below), andI love this idea of art having meaning on top of meaning-- that even when it is reduced to a mercantile transaction, it can be a statement about something important. The Masterpiece, indeed!
I am naturally inclined against unfair fights; most of us are. There is one playing out now, though, that I am kinda ok with.
When I was a prosecutor, there was this thing that happened a few times. A defendant would raise money and hire a private attorney, dumping their federal defender. This was almost always a mistake, since (at least in federal court in Detroit) the federal defenders were about the best criminal attorneys you could get for a federal case because they knew the judges, knew the law, knew the sentencing guidelines, and fought very hard for their clients.
Sometimes, the new attorney was from a different sphere-- they might hire a guy that the defendant's cousin had used in a real estate dispute, for example. The new attorney would come in and bluster and bluff, but knew nothing about the world he was traveling in. I remember one guy came to my office and insisted that his defendant should get probation. I asked him how he thought we could get there under the sentencing guidelines. He flew into a rage and said something like "you idiot kid-- they are GUIDELINES! You don't have to follow them!" I nodded and thanked him and sent him on his way without further discussion. The guidelines, at that time, were mandatory.
Donald Trump hired his real estate attorney. The guy made a show of handing out cigars and declaring victory last week. Meanwhile, no one heard much from Robert Mueller... other than that he had hired Michael Dreeben, probably the most respected criminal lawyer in the country, especially at the appellate level. And that was after stocking his staff with lawyers deeply knowledgeable about the way criminal law works at the highest levels.
Maybe, sometimes, I am ok with an unfair fight, so long as the weak party got there through hubris.
It has been a while since I have written for one of my favorite outlets, Sojourers, but this week I have a new piece there titled "The Presidential Pardon's Roots in Christian Faith." You can read the whole thing here.
Today, former FBI Director James Comey will testify in front of the Senate Select Committee on Intelligence, which is investigating Russia's involvement in the presidential election. It's a big deal in DC, and it should be-- this is an important moment.
Yesterday, Comey released written testimony. This isn't unusual; I have testified in front of a Congressional committee (lots of people have, including IPLawGuy) and did the same thing. You can read that written testimony here.
There were some fascinating passages in the written testimony. What intrigued me the most was this:
The President and I had dinner on Friday, January 27 at 6:30 pm in the Green Room at the White House. He had called me at lunchtime that day and invited me to dinner that night, saying he was going to invite my whole family, but decided to have just me this time, with the whole family coming the next time. It was unclear from the conversation who else would be at the dinner, although I assumed there would be others. It turned out to be just the two of us, seated at a small oval table in the center of the Green Room. Two Navy stewards waited on us, only entering the room to serve food and drinks. The President began by asking me whether I wanted to stay on as FBI Director, which I found strange because he had already told me twice in earlier conversations that he hoped I would stay, and I had assured him that I intended to. He said that lots of people wanted my job and, given the abuse I had taken during the previous year, he would understand if I wanted to walk away.
My instincts told me that the one-on-one setting, and the pretense that this was our first discussion about my position, meant the dinner was, at least in part, an effort to have me ask for my job and create some sort of patronage relationship. That concerned me greatly, given the FBI's traditionally independent status in the executive branch. I replied that I loved my work and intended to stay and serve out my ten-year term as Director. And then, because the set-up made me uneasy, I added that I was not "reliable" in the way politicians use that word, but he could always count on me to tell him the truth. I added that I was not on anybody's side politically and could not be counted on in the traditional political sense, a stance I said was in his best interest as the President. A few moments later, the President said, "I need loyalty, I expect loyalty." I didn't move, speak, or change my facial expression in any way during the awkward silence that followed. We simply looked at each other in silence. The conversation then moved on, but he returned to the subject near the end of our dinner. At one point, I explained why it was so important that the FBI and the Department of Justice be independent of the White House. I said it was a paradox: Throughout history, some Presidents have decided that because "problems" come from Justice, they should try to hold the Department close. But blurring those boundaries ultimately makes the problems worse by undermining public trust in the institutions and their work. Near the end of our dinner, the President returned to the subject of my job, saying he was very glad I wanted to stay, adding that he had heard great things about me from Jim Mattis, Jeff Sessions, and many others. He then said, "I need loyalty." I replied, "You will always get honesty from me." He paused and then said, "That's what I want, honest loyalty." I paused, and then said, "You will get that from me." As I wrote in the memo I created immediately after the dinner, it is possible we understood the phrase "honest loyalty" differently, but I decided it wouldn't be productive to push it further. The term -- honest loyalty -- had helped end a very awkward conversation and my explanations had made clear what he should expect.
Nothing in Comey's written testimony, on its face, will probably lead to impeachment. With a Republican Congress, probably nothing will. Yet, the expectation Trump had of personal loyalty is deeply troubling, given the investigation that the FBI was conducting at that time.
Yesterday, after work, I sat out in the backyard and did the crossword puzzle in the Times which was, oddly, composed by Lisa Loeb. A bug landed on my bare arm and I looked at it for a while as it walked first up-arm and then reversed course and headed back before I brushed it off. Overhead, a ragged V of geese flew north, not too high, moving fast. Kids in a neighbor's pool called out their dive ("can opener!") and then there was a splash...
So-- on Thursday of this week I will be talking about clemency at the 331 Club, a bar in Northeast Minneapolis. All are welcome (well, all of you who are over 21). It is free, and people gather starting at 6 with the talk at about 7. This is my fourth time doing this, and it's kind of a blast.
With President Trump pulling the US out of the Paris Climate Accord, the discussion of how we relate to our environment is getting amped up again. Part of that discussion-- within Christian circles-- is about the faith requirements relating to environmentalism. Some argue strongly that we have a moral duty to protect the Earth. Others counter that God gave man dominion over the Earth, for it to serve our purposes.
The whole thing seems awkward to me. This, like a number of other hot-button political issues, is not something Jesus directly talked about. He talked about the death penalty, for example, much more directly than he talked about the environment.
That doesn't mean that the precepts of the faith, however we perceive them, shouldn't influence our view on environmentalism.
For me, much of what Christ taught emphasized one key attribute: humility. It is a difficult teaching, but he did it over and over again in urging self-sacrifice and service of God and our neighbors. If humility is at the core of the faith, doesn't that mean that we should be humble in how we approach the Earth? In that we should sacrifice to maintain it for God and for others? There is a self-centeredness in choosing (possibly) cheaper energy given the environmental costs. Humility pushes the other way, and we should, too.
Imagine an incoming president of the United States announcing that he or she would take advice on criminal justice matters exclusively from a Federal Defender’s office. Moreover, the new chief executive intends to put the defenders in charge of federal prisons, forensic science, and the clemency process. After all, the president might argue, the defenders understand federal criminal law from the ground up, have a rich understanding of the social conditions that lead to criminal behavior, and are the federal attorneys most responsible for ensuring individual Constitutional protections.
People would be outraged. Critics would complain that the defenders represent only one part of the justice system, and are inherently biased because their work in the courts is always on behalf of the accused.
Yet, somehow, the mirror image of that situation is our reality and goes largely unchallenged.
Despite an obvious conflict of interest, the Department of Justice evaluates clemency petitions, runs federal prisons, decides what forensic evidence to introduce in federal cases, and advises the president on criminal justice reform. And make no mistake — prosecutors dominate the agency, with the 93 United States Attorneys playing the leading role in setting policies across a range of issues and career prosecutors running most of the divisions.
This defining characteristic matters, because a building full of prosecutors will instinctively push back against reforms that could make criminal law fairer, less retributive, and more productive. That may be most obvious when a president is hostile to criminal justice reforms, but it is also true when a president is progressive.
The piece is kind of a short-form version of the longer piece Rachel Barkow and I have coming out in the William and Mary Law Review (which you can download now here).