Barely two weeks remaining before he’s due to leave office, President Barack Obama, J.D. ’91, has written an emotional plea for criminal-justice reform in the January 2017 edition of the Harvard Law Review, arguing for the role of the presidency in reducing mass incarceration. Obama was president of the Law Review in 1990-91, as a third year at Harvard Law School.
“Those privileged to serve as President and in senior roles in the executive branch have an obligation to use that influence to enhance the fairness and effectiveness of the justice system at all phases,” he writes in the article’s introduction. “How we treat citizens who make mistakes (even serious mistakes), pay their debt to society, and deserve a second chance reflects who we are as a people and reveals a lot about our character and commitment to our founding principles.”
Criminal-justice reform, for Obama, has been a matter not only of political but also of deep personal concern. “As a community organizer, I saw firsthand how our criminal justice system exacerbates inequality. It takes young people whose mistakes were no worse than my own and traps them in an endless cycle of marginalization and punishment,” he continues. “More than twenty years ago, I wrote about my experience in neighborhoods where ‘prison records had been passed down from father to son for more than a generation.’”
The article marks one of many steps the president has taken in the last several weeks to defend his legacy as a new Republican-controlled Congress, with many members who obstructed what he tried to accomplish while in office, starts work. During his administration, Obama has been castigated at times by critics on all sides of the criminal-justice debate. Racial-justice advocates, in Black Lives Matter and related movements, have been impatient with what they view as his hesitance to talk about structural racism. On the right, his decisions to commute the sentences of some federal prisoners provoked accusations of being “soft on crime.” But criminal justice reform has long been a matter of broad bipartisan consensus. The high cost of mass incarceration has been enough to draw libertarian-leaning Republicans to reform. Some of the policy ideas described in Obama’s article could thus become the basis for legislation in the near future, as senators—including Senate Judiciary Committee chair Charles Grassley—advocate sentencing reform as their own initiative. Some conservative states, as Obama points out, have reformed sentencing policies and invested in healthcare resources for inmates without compromising public safety.
“[W]ith the hugely important conversation about criminal justice that’s going on—not just on law school campuses, but all over the country right now—we were thinking about pieces that could be particularly powerful in addressing that topic,” Law Review president Michael Zuckerman ’10 explained. “And given that the President and his Administration have made addressing criminal justice a focus, plus the President’s own background as a lawyer, law professor, and community organizer, this idea jumped out at us as something that could be really special. So even though we knew it was a huge long shot, we reached out to Dean Minow—who is also the Chair of our Board of Trustees—and thanks to her, we were able to approach the White House and begin a conversation.”
Zuckerman said the article brings to light the interaction between the criminal justice system and the presidency, whose relationship may not be obvious. He believes it’s lucid enough to draw an audience who aren’t regular readers of legal scholarship: “[Y]ou have these two complex entities—criminal justice and the presidency—and this piece helps us learn about how they interact from someone who has occupied this singular set of vantage points. And in doing that, it gives us this clearly written, practically engaged perspective, which is something that many great law review articles have, but that is not always the type of writing people associate with legal scholarship.”
The article largely restates the bipartisan case for criminal-justice reform, with an emphasis on mass incarceration’s financial cost. It discusses the Obama administration’s work at the federal, state, and local levels as a model for the presidential role in criminal justice reform, and stresses work that remains to be done to fix the justice system.
About 2.2 million Americans are imprisoned today, the president writes, a more than fourfold increase since 1980, and a total higher than any other nation’s. “With just 5% of the world’s population, the United States incarcerates nearly 25% of the world’s prisoners…If one includes the cost of jail and prison at the state and local level, the total U.S. budget for incarceration rises to a staggering $81 billion, enough to fund transformative initiatives like universal preschool for every three- and four-year-old in America.” He continues,
An estimated seventy million Americans—roughly a third of the adult population—have some type of criminal record, which can trigger a whole host of stigmas and restrictions, including barriers to employment, voting, education, housing, and public benefits. Each year, more than eleven million Americans cycle in and out of jails, impairing their ability to work and support their families. And in too many communities—especially communities of color and those struggling with poverty and addiction—the justice system has touched almost every family.
It wasn’t only an epidemic of crime in the 1980s and 1990s that produced today’s mass incarceration, he continues, but also racially biased policymaking. “A large body of research finds that, for similar offenses, members of the African American and Hispanic communities are more likely to be stopped, searched, arrested, convicted, and sentenced to harsher penalties. Rates of parental incarceration are two to seven times higher for African American and Hispanic children. Over the past thirty years, the share of African American adults with a past felony conviction—and who have paid their debt to society—has more than tripled, and one in four African American men outside the correctional system now has a felony record. This number is in addition to the one in twenty African American men under correctional supervision…The system of mass incarceration has endured for as long as it has in part because of the school-to-prison pipeline and political opposition to reform that insisted on ‘a stern dose of discipline—more policy, more prisons, more personal responsibility, and an end to welfare.’ Today, however, much of that opposition has receded, replaced by broad agreement that policies put in place in that era are not a good match for the challenges of today.”
At the federal level, Obama writes, his administration has reduced mandatory-minimum sentencing requirements; signed the Fair Sentencing Act, which eliminated the disparity in punishment for crimes involving crack cocaine and powder cocaine (which had disproportionately harmed people of color); and banned solitary confinement in federal prisons for juveniles and for low-level crimes, among other reforms. He’s commuted the sentences of more than 1,000 inmates. He describes one of them, Ramona Brant: a first-time offender who “was convicted of involvement in a conspiracy to distribute crack and cocaine. Her boyfriend led the conspiracy, and as she later described it, maintained ‘emotional control [and] physical control’ over her through tragic and sometimes violent abuse.” Because of a mandatory-minimum law, the judge was forced to give her a life sentence. Ramona’s case, Obama writes, “is in many ways emblematic of the problems with overly harsh mandatory sentences in the federal system.”
Presidents have less influence over state and local prison systems, but they’ve been a focus of his administration because they house the vast majority of the nation’s inmates. He condemns the “criminalization of poverty” in state and local justice systems: the imposition of fines, excessive bail, and lack of access to legal representation. “There is simply no excuse for the proliferation of ‘user fees’ that charge defendants—innocent or guilty—for everything from paperwork to legal representation, consigning those who cannot afford to pay to a cycle of debt, incarceration, and prolonged poverty.” He reminds readers that in an investigation of the Ferguson, Missouri, police department, the Department of Justice found that the city imposed “steep fines for a range of minor offenses, including $302 for jaywalking and $531 for untended lawns…Those who did not or (more often) could not pay found themselves facing ever-escalating penalties and even jail time, destroying the community’s faith in the justice system and law enforcement.” The president also urges the use of body cameras by police, citing social-science research suggesting the devices can improve accountability and reduce complaints against officers.
Because “No number of commutations will ever achieve lasting structural reform of our sentencing laws,” Obama calls on the new Congress to pass meaningful sentencing reform and to reduce gun violence by expanding background checks (“There should be no mistake that gun violence is an epidemic playing out across the country every day”). Opioid addiction should be treated as a health crisis and not a crime, he urges, with appropriate funding devoted to treatment. And he condemns the disenfranchisement in some states of people with felony convictions, even those who have served their sentences.
“There is so much work to be done,” he admits in his brief conclusion, even as he remains hopeful that reform is likely. Ultimately, he writes,
those entrusted with influence over the direction of the criminal justice system must also remember that reform is about more than the dollars we spend and the data we collect. How we treat those who have made mistakes speaks to who we are as a society and is a statement about our values—about our dedication to fairness, equality, and justice, and about how to protect our families and communities from harm, heal after loss and trauma, and lift back up those among us who have earned a chance at redemption.