Late in his term, President Obama has identified the criminal justice system as a home-stretch priority. “Any system that allows us to turn a blind eye to hopelessness and despair, that’s not a justice system, it is an injustice system,” the president said at the NAACP annual convention in July. So we asked scholars, experts, and advocates from across the ideological spectrum to share their wish lists of criminal justice reforms the president could reasonably achieve in the final 500 days of his term.
Here is a selection of those responses. We then asked a handful of respondents to further discuss their proposed reforms, and that conversation can also be found below.
Prosecute the Prosecutors
“The president should empower the DOJ to prosecute prosecutors (not just police) for civil rights violations; support open-file discovery1 in federal cases; discipline federal prosecutors for Batson violations; impose limits on use of informants, require immediate disclosure of Brady2 material; make race/gender/geographic data regarding charging decisions, plea bargains, and sentences publicly available; and create an internal protocol for ongoing review of race/gender/geographic disparities.”
“Establish a Task Force on 21st Century Prosecution. Most prosecutors can’t even tell you what they’re doing to control crime, beyond handling the cases dropped at their doorstep. They take no responsibility for the crime problems in their jurisdictions, and are entirely absent from the crucial conversations about law enforcement/community relations, the unintended consequences of traditional criminal justice practice, and the historical relationship of the criminal justice system with black and other minority communities.”
“Federal Judge Alex Kozinski has observed an ‘epidemic’ of Brady violations in our criminal justice system. Even after the scandalous case against Alaska Senator Ted Stevens, the Department of Justice has opposed reform measures such as the bipartisan Fairness in Disclosure of Evidence Act3. Obama should welcome the measure and sign it into law.”
Have Truly Smarter Sentencing
“Commute every pre-Fair Sentencing Act4 crack-cocaine sentence to the length it would have been if the person had been sentenced after 2010 (at the very least).”
“Establish a Bipartisan National Commission on Overcriminalization. This nation prosecutes too many people for too many things and sentences those people far too harshly. The commission should study the extent to which the criminal justice system has been manipulated into a tool to regulate all manner of social, personal, and economic behavior that is not fundamentally and inherently criminal.”
“Order all federal agencies to place on their website a list of all statutory and regulatory offenses within their purview that carry criminal penalties and the intent (mens rea) required for a conviction. There is such a provision in the Smarter Sentencing Act5, but the administration could easily require it on its own.”
“Amend federal sentencing guidelines to have crimes that are punishable by up to 365 days reduced to 364 days. This would eliminate immigration consequences6 for thousands of documented immigrants who are convicted of crimes.”
Release More Prisoners
“With more than 200,000 people in federal prisons, the president should significantly increase the number of commutations he grants. He should make such grants on a regular basis throughout the remainder of his term. And beyond the current clemency initiative, he should launch an initiative to review and consider a reduction in sentence for every non-capital federal inmate who has served 20 years or more with no record of violence while incarcerated.”
“Abolish the Office of Pardon Attorney and shift its function to the White House. Some clemency experts have developed proposals along these lines, but any of the major options would be improvements: create a new office in the White House, bring pardon attorneys into the White House Counsel’s office, create an independent office outside both DOJ and the White House.”
“Congress has already authorized 54 days of good time each year for each inmate. The BOP however has only given 47 days. Since the federal prisons have over 200,000 inmates, that equates to adding more than 3,800 years of prison time each year (7 days x 200,000 = about 1.4 million days or about 3,800 years) at a cost to taxpayers of well over $120,000,000 a year. Now that’s just dumb.”
Don’t Forget the Aftermath
“Instruct the Federal Bureau of Prisons to study opportunities to outsource community supervision and reentry services to state and local governments as well as non-profits, particularly in areas that are not densely populated, where it is inefficient to replicate this same programs in the federal system.”
“The president could use an executive order to "ban the box"7 for executive branch roles. He also could do the same for federal contractors. Since the collateral consequences of a conviction on ex-offenders are imposed by the government, he should try to ease those that he can where it makes sense and he has the authority to do so.”
Rethink Solitary
“Instruct the Federal Bureau of Prisons to identify ways to safely reduce the unnecessary use of solitary confinement and eliminate the practice of releasing inmates directly from solitary confinement to the public.”
“Establish federal commission to revamp the use of solitary confinement. Appointees should include people who are formerly incarcerated and have suffered from solitary confinement.”
“Ban all solitary confinement in pre-trial detention and for juveniles (persons under 18) or persons with mental disabilities.”
“Order the BOP to develop a plan to come into compliance with the international human rights standard prohibiting solitary confinement lasting more than 15 days. Pending achievement of that goal, the BOP should provide enriched programming, improved mental health treatment, and increased social interaction for those held in segregated housing.”
Create a Few Commissions
“Establish a Bipartisan Commission on the Defense of the Poor. As former Attorney General Holder has noted, ‘America’s indigent defense systems exist in a state of crisis.’ This bipartisan commission should be tasked with developing a roadmap to ensure that every accused person in every state and territory who faces either loss of liberty or a criminal prosecution has meaningful and effective assistance of counsel.”
“Push for the creation of a National Commission on Criminal Justice. That commission should produce a comprehensive blueprint for the nation’s justice system; this is something that has not been done since 1965. The commission should make recommendations on the economics of right-sizing justice and look at how the federal government can financially incentivize the shrinking of the prison system.”
Anything Else?
“Obama should dismantle the simplistic dichotomy between people who are 'deserving' of alternatives to incarceration or sentence relaxation (e.g., non-violent, first-time drug offenders) and those who are 'undeserving' (e.g., violent offenders). It is of course rhetorically powerful to distinguish between those who we are mad at and those who we are scared of, and every politician and commentator does it, including the president himself. Some sentencing reformers even do it. The 'violent offender' is the third rail of criminal justice reform, but the label, which immediately conjures the most frightening mental image of some pathological, homicidal offender, is overly broad and reduces whole people to one bad act.”
“The Controlled Substances Act permits the Attorney General to move drugs between schedules. Obama should direct Attorney General Lynch to move marijuana from Schedule I to Schedule V8. Rescheduling marijuana would do several things: (1) facilitate a more honest discussion and debate about marijuana policy; (2) facilitate more scientific and medical research; (3) ease a financial obstacle for state-level marijuana suppliers who cannot deduct ordinary business expenses under the tax code.”
“In order to reverse the legacy of the 1994 Crime Bill9 and other federal funding that incentivized states to build more prisons and keep people in prison for a longer periods, the president can administratively redirect federal funding to roll back the punitive nature of these policies.”
“Establish a national system for tracking citizens’ experience of being policed. We have the Uniform Crime Reports for tracking reported crime, and the National Crime Victimization Survey to capture victimization. We have nothing to capture, in any systematic way, the public’s trust or lack of trust in the police, or perceptions of legitimacy, responsiveness, competence, and abuse.”
“End the transfer of military equipment to all public schools. The president's Law Enforcement Equipment Working Group recommended a ban on the transfer of military equipment to law enforcement agencies ‘solely’ serving schools. But most school districts do not have their own police departments.”
“The president and his attorney general can insist that BOP fully comply with the Prison Rape Elimination Act10 standards in all of its facilities and engage in meaningful, independent audits of its compliance. The DOJ should require that every non-compliant state submit detailed plans and a timetable to achieve full compliance with the PREA standards. Additionally, the DOJ should step up its oversight of the independent audits of PREA compliance required by federal regulations to ensure that the audit process is vigorous, meaningful and well documented for every facility.
Obama’s Next Steps: A Conversation
Sentencing reform for low-level drug convictions has been a major topic of conversation on Capitol Hill the past few years, but little legislation has emerged from the debate. How can any politician, and especially the president, push for such reforms given the spate of news reports and research that show an increase in illegal opiate use?
I think it is slightly more difficult, but still doable [given the current political climate]. People have viewed this as a public health matter, less a criminal one.
You cannot criminalize or penalize your way out of a public health problem.
That being said, we’re seeing an increased number of criminal penalties for the sale/distribution of heroin being enacted in states, as well as legislation allowing dealers — who sell or give heroin to an individual who later overdoses and dies — to be charged with various manslaughter and murder charges. Louisiana is a good example. In 2014, Gov. Jindal signed a law increasing the mandatory minimum of those convicted even one time of dealing heroin to 10 years (from previously 5), and increased the penalty for repeat heroin distribution from 50 to 99 years.
Nothing is more pervasively harmful than alcohol, but the country went down that road and ultimately decided to accept the harms and not use the criminal justice system to prevent them.
Speaking of sentencing, there has been some chatter lately in Washington that the president can expedite the pardon process by moving it out of the Department of Justice, where it now resides, and installing it within the ambit of the White House. The move, supporters say, would take pardon review out of the hands of prosecutors, who rarely endorse pardons. Detractors worry that it would mean more power for the president within the executive branch. Thoughts?
Any pardon runs counter to what DOJ wanted. The president should set a default: Unless I hear good reasons from DOJ in 30 days, this prisoner is going to be pardoned.
One of the staunchest supporters of sentencing reform on the Hill, Rep. Sensenbrenner, balked over Obama's last 46 commutations, so I think the president and advocates should be wary of action that seems too aggressive.
LB, do you find it ironic that Loretta Lynch, a former prosecutor, is now seen as a bulwark against excessive use of the executive branch power given the allegations11 made against her during her confirmation hearing?
I am not sure it is ironic. As a federal prosecutor, her job was to prosecute the law and comply with DOJ guidelines, but she is in a different role now.
First, let’s remember the distinction between pardons and commutations — both part of the president's clemency power. Hopefully, the clemency initiative will not result in an abandonment of pardons. But with respect to clemency and the clemency initiative, hopefully the president will not balk in the face of some criticism. He has received broad support from the left and the right. He could vastly accelerate the process. I hope that he would expand the process beyond the current criteria.
What about using a presidential task force or commission?
Federal task forces are mostly symbolic and don’t really help facilitate policy change. But perhaps I’m being too cynical.
There would be a long discussion on WHAT the problems are and not HOW to solve them.
The fact that we still aren’t able to answer important questions (How many people are killed by police officers each year? How many SWAT raids are conducted in each state and for what purposes? What are the most common reasons individuals are thrown into solitary confinement, and how long is their average stay?) is going to inhibit our ability to facilitate real policy change, regardless of whether or not a task force exists.
The president has an opportunity this year to replace the current chief of the Bureau of Prisons, Charles Samuels, who announced earlier this year that he would be leaving. And there has been a spirited debate over who the replacement should be — someone with knowledge of the sprawling system, or someone who would come to the job fresh.
The place needs to be completely reimagined. Of course prisons need to keep dangerous individuals away from the community. But for the 90 percent plus who are going to return to society, our prisons should help prepare them to succeed. That requires a reexamination of every aspect of prison, including the types of programs and services offered, and the training and qualifications of the staff. This reexamination cannot be conducted by jailers.
There must be a fresh approach, one that emphasizes training, education, and rehabilitation over pure punishment.
Recently Cook County Jail in Chicago appointed a warden who is also a psychologist, mainly to address the new recognition of mental illness. The same could be done with trauma, both during and before incarceration. From my personal experience, the people who have been able to cope and manage incarceration at a level that allows them to not regres, were those who were given the resources to cope.
So you are thinking more along the lines of a doctor than a cop.
I wouldn't make a doctor the head of BOP, but I would expand mental health services dramatically.
I’m still holding out hope that Obama himself can severely limit the use of solitary confinement in federal facilities.
The BOP can follow the model of states such as Washington and Colorado and offer programming and limit the use of solitary — it needs to be a cultural change within the BOP.
Let’s presume that Obama is unable to achieve anything more on criminal justice reform before he leaves office. What would his legacy be if it ended today? Write me the first sentence of that story.
I think a big part of his legacy is Eric Holder and the “Smart on Crime” initiative.
I was going to mention that, but how do you institutionalize charging policies? Can't a new AG with different agenda undo all that?
If his presidency were to end today, I'd say his criminal justice reform legacy would be mostly disappointing. In the first few years, he was enormously stingy with his clemency power (at one point pardoning more turkeys than people), the feds cracked down on medical marijuana more aggressively than they did under George W. Bush, and he continued to defend the Schedule I classification of marijuana (something he hasn't gone back on even today). Once the politics of the issue began to shift during the final years of his presidency and more Republicans got on board with reform, Obama also shifted on the issue — for which he should be commended.
He reacted, rather than led the way. His visit to the federal prison was a very good step, but we'll look back and see that he followed reform momentum instead of led the way.
While he's started to embrace reform in 2015, it can hardly be seen as a serious act of courage.
I hope this is not wishful thinking, but: "With remarkable bipartisan support, President Obama demonstrated that it is time to move beyond draconian sentencing practices by commuting the sentences of more than 1,000 prisoners who were serving excessive sentences — far and away the single most historic use of the clemency power by an American president." The mere fact that he appears committed to granting commutations on a regular basis may pave the way for future presidents to do the same.
"Beginning steps and good intentions led the way, but systemic reform still couldn’t grab a foothold."
Responses have been edited for length and clarity.
