Thursday, June 01, 2017
Political Mayhem Thursday: The DOJ as a Brake
I have a new piece up over at the Marshall Project titled The Problem with the Justice Department. Here is how it starts:
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).
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).
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You even made it to Above the Law, and in a good way: http://abovethelaw.com/2017/06/heres-whats-wrong-with-the-justice-department/
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