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December 21, 2016

"The Obama Legacy: Chipping Away at Mass Incarceration" ... but ...

The quoted portion of the title of this post is the headline of this notable new commentary authored by Marc Mauer.  Perhaps appropriately given the "Obama Legacy" label, the piece is focused mostly on the federal sentencing system.  And, in my view inappropriately, the piece gives Prez Obama a little too much credit for some of what I consider to be his "day late and dollar short" work in this arena.  With that set up, here are excerpts (with two lines emphasized that really rankles me, as I will explain after the excerpt):

As President Obama prepares to leave office, the United States still holds the dubious honor of having the highest incarceration rate in the world, with 2.2 million people behind bars. In order to assess his impact on the criminal justice system, it’s necessary to examine the policy shifts that got us here in the first place.

In 1980 there were 24,000 people in the federal prison system, about 25% of whom were serving time for a drug offense. By the time Obama was elected in 2008, that number had ballooned to 201,000 people, nearly half of whom were locked up for a drug offense.

There are two key reasons for the population explosion — both rooted in the war on drugs.  First, President Reagan encouraged federal law enforcement agencies and prosecutors to emphasize drug arrests. Second, Congress adopted mandatory sentencing policies — frequently applied to drug offenses — that established a “one size fits all” approach to sentencing. Federal judges were obligated to impose prison terms of 5, 10, 20 years — or even life — largely based on the quantity of drugs involved. They were not permitted to take any individual factors, such as histories of abuse or parenting responsibilities, into account to mitigate those sentences. The racial disparities from these sentencing policies were particularly extreme.

The most egregious of these policies were tied to crack cocaine offenses.  Someone possessing as little as five grams of the drug (about the weight of a sugar packet) would face a minimum of five years in prison.  That threshold was significantly harsher than the mandatory penalty for powder cocaine, which required a sale of 500 grams of the drug (a little over a pound) to receive the same penalty.  Since 80% of crack cocaine prosecutions were brought against African Americans, the racial disparities from these sentencing policies were particularly extreme.

Momentum for reforming the crack cocaine mandatory minimum laws predated the Obama administration, and had growing bipartisan support when the President took office.  The President signed the Fair Sentencing Act into law in 2010, reducing sentencing severity in a substantial number of crack cases.  Then in 2013, Attorney General Eric Holder issued a memorandum to federal prosecutors calling on them to avoid seeking mandatory prison terms in low-level drug cases, which has cut the number of cases with such charges by 25%.

While the changes in sentencing laws have helped to reduce the federal prison population, the highest profile of Obama’s reforms is his use of executive clemency to reduce excessively harsh drug sentences.  That is a story of both politics and policy.  During Obama’s first term he used his clemency power far less than his predecessors — a pattern that was sharply criticized by many reform groups and editorial  boards. But after launching a “clemency initiative” in 2014, the President has commuted the drug sentences of more than 1,100 individuals (with promises of substantially more by the time he leaves office).  Notably, in about a third of these cases, the individuals had been sentenced to life without parole due to mandatory sentencing policies....

Perhaps the most significant aspect of President Obama’s work in regard to criminal justice reform has been his role in changing the way we talk about the issue. After a disappointing first term in which these issues received only modest attention, Obama’s last years in office framed criminal justice reform as a top priority. Among a series of high-profile events during his second term was the President’s address on mass incarceration at the NAACP national convention, at which he concluded that “mass incarceration makes our country worse off.”

Mass incarceration did not come about because there is a shortage of ideas for better approaches to public safety — it was the result of a toxic political environment where legislators favored political soundbites over evidence. By using the bully pulpit to frame justice reform as a major issue, Obama provided some coverage for mainstream legislators to support sound policy options.

It is difficult to be optimistic that the incoming administration will look favorably on criminal justice reform.  Leading Republicans, such as House Speaker Paul Ryan, may be persuasive in making the conservative argument for reform.  But President-elect Trump’s “tough on crime” rhetoric, which paints many incarcerated people as “bad dudes,” suggests progress at the federal level will be a challenge.  Realistically, opportunities for justice reform are more likely at the state level. Many local officials are already convinced of the need for sentencing reform and reentry initiatives, and they may be less influenced by the political climate in Washington. If so, such changes at the local level may ultimately gain traction in a Trump White House as well.

1.  The first line emphasized above makes me extra crazy because it falsely portrays Prez Obama as a bold leader who used the bully pulpit in order to provide "coverage for mainstream legislators to support sound policy options."  This could not be more backwards: Prez Obama was a timid and disappointing follower here, as his July 2015 NAACP speech about the need for reform came only AFTER "mainstream" politicians ranging from Rand Paul to Corey Booker, from Ted Cruz to Patrick Leahy, from Rick Perry to Deval Patrick, from Bobby Jindal to Jim Webb, from Chuck Grassley to Dick Durbin, from Jim Sensenbrenner to Bobby Scott, from Raul Labrador to Elijah Cummings, from Judy Chu to Mia Love, from Newt Gingrich to even Chris Christie had all spoken in some significant ways about the need for significant criminal justice reform and especially sentencing reform (and I am sure I am leaving out many others).

2.  The second line emphasized above makes me crazy for more "inside baseball" reasons: given that this commentary makes much of the "egregious" crack/powder cocaine sentencing policies that were only partially fixed by the FSA, the commentary ought to take a moment to note that Prez-Elect Trump has nominated as Attorney General the most prominent and vocal GOP Senator who was complaining loudly about the 100-1 crack/powder laws before doing so was popular or comment.  As noted in this post and recently reported by the Wall Street Journal, " Mr. Sessions was for years Congress’s most avid supporter of cutting the disparity between sentences for crack and powder cocaine, at a time when other lawmakers were loath to be seen as soft on crime."  

I really respect so much of the work Marc Mauer does in his commentary and through The Sentencing Project, but these troublesome statements reflect what I am seeing as the worst tendencies of the "commentariat class" since the election.  Specifically, even though Prez Obama's record on sentencing reform is relatively unimpressive (especially as compared to his record on lots of other issues), many on the left seem eager to assert that Prez Obama really achieved a lot in this arena and then go on to gnash teeth about reform momentum being halted now that there is a new sheriff in town.  This narrative entirely misses, in my opinion, not only (a) the reality that Prez Obama himself retarded reform momentum in many ways (e.g., by getting such a late start on clemency, by resisting mens rea reforms that could have been included in bipartisan sentencing reform bills), but also (b) the (significant?) possibility that many GOP leaders in Congress who have actively promoted and worked hard on federal sentencing reform bills will keep up that work in the years to come.

December 21, 2016 at 06:49 PM | Permalink


I don't really see that Obama used his "bully pulpit," either. Frankly, he's been as big a political chicken___ as any other federal politician you care to name. He does most of his work on the QT.

I do like the part about foggy political rhetoric and anecdotal evidence being substituted for rational discussion or actual evidence-based argument.

Posted by: Fat Bastard | Dec 21, 2016 9:56:13 PM

Jeff Sessions will deport the massive number of illegal criminals, and I suspect he'll use the bully pulpit to inveigh against Zavydas v. Davis, an indefensible 'rat judge decision.

Posted by: federalist | Dec 22, 2016 9:51:42 AM

I have repeated agreed that Obama has been a disappointment here, but he was talking CJ reform back in 2007 while running for President. So it isn't fair to say he followed rather than led.

His 2007 speech at Howard he spoke out against mass incarceration, the drug war and mandatory sentences. http://www.presidency.ucsb.edu/ws/?pid=77014

You continue to give too much credit to Right on Crime. You are uncritical of their claims, you give them a pass on their own contributions (esp Gingrich) to the problem, and for saying they value skepticism of govt power even as they say nothing about death penalty reform.

No one understands Sessions stance on the crack-coke disparity, so we can't place too much emphasis on that idiosyncratic position when looking at his overall fit for the position.

Posted by: Paul | Dec 22, 2016 9:58:17 AM

In the speech at Howard, Obama ragged on the "just us" system--cute.

Posted by: federalist | Dec 22, 2016 10:34:08 AM

Your remarks on Marc Mauer's piece are so right on. He was a pioneer in his assessment of the dangers of over incarceration. He's been consistent and clear for 30 years providing valuable commentary and analysis of criminal justice policy as it relates to sentencing.

I also believe that the current commentary about the legacy of this administration will not stand without significant acceleration of clemency. The process has been co-opted.

There are nonviolent marijuana offenders with life sentences who have been denied, and the criteria now appears to be random without consistency. The promise of possibly 10,000 made by Holder will be hard to reach. Controlling the dialogue may work in the short term but will not substitute for the implied promise.

The Obama administration is still in control and has the power, authority and ability to meet the earlier rhetoric - we hope and pray that it will.

Posted by: beth | Dec 22, 2016 11:04:16 AM

So let me rant for a moment, Doug.

Go back to my comments on this very blog from about eight years ago. To quote myself, "Obama is a lot more conservative than people think he is." In other words it was totally predictable that Obama would behave the way he did over the last eight years on Criminal Justice issues. If Obama was a failure for not leading in executive action others share the blame for doing nothing while waiting on their assess expecting him to lead.

For a whole range of reasons I share the Republican view that history will not judge Obama kindly. I think that people fifty years from now will look at the last eight years as a great opportunity squandered. But I also think that fact that Obama would squander his opportunities was predicable to anyone who paid attention.

Posted by: Daniel | Dec 22, 2016 11:24:53 AM

Lots of strong points here on all fronts, and I want to assert that there is PLENTY of blame to go around: e.g., in 2008-09, then-House leader Nancy Pelosi refused to make any CJ reform a 100-days priority; for the entire period 2009-2013, the D-controlled Senate was unwilling to bring statutory reforms up for a floor vote because of fear that some Ds would balk at such a vote with an eye to their own political future; folks on left and right failed to do smart/simple changes to, e.g., increase good time and earned time credits, etc.

Posted by: Doug B. | Dec 22, 2016 11:32:45 AM

This blog is a sentencing blog so Obama's "failure" to me is a bias of subject level.

On a range of issues, including gay rights, he was not a "failure." The Republicans want to "repeal and replace" PPACA. Telling phrasing. Even there, one of their signature issues, this "failure" helped put in place a major health care law that parts will likely be retained because of their value and basic popularity. Parts that by themselves are major advancements of the betterment of millions of people, many who didn't have health insurance. This includes those in red states, that VOLUNTARILY expanded Medicaid.

I am quite agreeable -- the b.s. 'socialist' stuff from some quarters notwithstanding -- that Obama is more conservative than some make him out to be. It helped his election, including talk of unity (not going do that without some moderation that will sometimes look conservative). He spoke out against mass incarceration. Great. He could have been a "bold" leader all he wanted, but has to deal with Congress and the public as well. Toss out "timid" all you want. It sounds too much like expecting what wasn't going to happen. Meanwhile, various other things are ignored, since again this is a sentencing blog.

Posted by: Joe | Dec 22, 2016 1:24:51 PM

ETA: Not just "expecting," more like ideologically and policy-minded in a certain direction and wanting something to happen. Obama had to deal with loads of domestic and foreign policy matters, in the face of a strong opposition.

And, just to take one thing, the "mens rea" reform discussion here included to me a poison pill involving making it harder to prosecute certain regulatory crimes without it being that clear to me that the bill really was going to pass. The legislature was deciding the bill. The Republicans control it. But, the Democrats were blamed. I don't buy it, even if some minority of Republicans are sympathetic to change here. That isn't enough. You need a majority. And, this includes many who are much more likely to take a hard line on the issue.

Posted by: Joe | Dec 22, 2016 1:32:17 PM

"any CJ reform a 100-days priority"

Sure, since Republicans wouldn't have filibustered anything tossed up there. Plus, yes, the necessary final votes here were conservative Democrats. Pelosi knew this. We might not like it, but that's the reality of the people in power. Likewise, the focus was on an economic stimulus package that was deemed necessary immediately. Other things were also being addressed, again, including a health insurance law that helped millions.

More could have been done, but the failures came in the context -- like the Supreme Court -- of a system that goes beyond the limited issues this blog is interested about.

Posted by: Joe | Dec 22, 2016 1:39:08 PM

All of your points, Joe, are valid, but they miss the main thrust of my criticisms: as Peter notes, Obama talked big on CJ reform in 2007, but thereafter acted quite small until 2015. Say all you want that he had other concerns and priorities, but that is the heart of my criticism: Obama decided acting boldly on so many other fronts was so much more important than doing so on CJ reform.

Posted by: Doug B | Dec 22, 2016 3:19:23 PM

Our criminal justice system employs millions of government employees - in all fields, enforcement prosecution and incarceration. These programs are difficult to de fund. Communities and families depend on this endless source of revenue. This may be a reason for the inability to have drastic or substantial criminal justice reform.

This money could go a long way toward funding the "crumbling" infrastructure if we only had the resolve - I would like to think that this is a way that could have some bi-partisan appeal to accomplish needed cj reform and also pivot toward a much needed upgrade for our highways,airports and utility improvements.

Posted by: beth | Dec 22, 2016 8:21:27 PM

@joe On a range of issues, including gay rights, he was not a "failure.

This claim drives me crazy. Obama deserves no credit (or blame) for gay rights. His administration didn't do a damn thing. The opinion in SSM was written by a Republican who was appointed by Ronald freaking Reagan. Other than the fact the ruling was written on his watch--a historical coincidence--Obama had nothing to do with it.

The same with the ACA. That had zero to do with Obama. In fact, when in was in the Senate he opposed the ACA. To be fair, he did sign the bill into law. But that was it. HE neither advocated for it or planned it; he went along for the ride.

I get really sick of this liberal lauding of Obama for progress that Obama had little or nothing to do with.

Posted by: Daniel | Dec 23, 2016 11:44:19 AM

When I go to Mass on Sunday I know I will not be able to leave. Even after they pass the plate and I pay my dues I have to stay. Some say that Mass Incarceration is not needed in the 21st Century, that Catolicks will continue to show up and listen to all the malarky until they are permitted to leave. We will not see the end of it in my lifetime.

Posted by: Liberty1st | Dec 23, 2016 7:25:07 PM

Daniel writes, "For a whole range of reasons I share the Republican view that history will not judge Obama kindly." Well, in 20 days or so, there's a new boss in town. We'll see how his next four stack up against Obamas. I don't know about the rest of you, but Trump's impulsive tweets, especially on nuclear war, leave me very apprehensive.

Posted by: anon | Dec 23, 2016 8:59:54 PM

Prof. Berman spreads the blame to all sides for the slowness of criminal reform. Perhaps, this slowness deserves praise, not blame. Perhaps, loosing vicious, super-predators, including non-violent drug dealers, is a bad idea. See the posting on the soaring murder rates in several cities.

If one wants real and effective criminal justice reform, consider stopping the all out, nasty, and relentless assault by the lawyer profession on the patriarchal family and on religious institutions. They are far more effective at imparting morality and at suppressing crime than big government. The latter is a wholly owned subsidiary of the lawyer profession. It is using its powers to crush the competition to big government, to the serious detriment of crime victims. No one if forcefully asserting their interest because there is no money in doing so. This is a point in Beth's comment on the financial dependency of many constituencies on maintaining a high crime rate. Beth is a lawyer, I think. So this is very advanced thinking.

Posted by: David Behar | Dec 24, 2016 8:48:09 AM

I think that lawyers should be allowed to get a license if they "read for the law". That was an apprentice method back in the days of Lincoln. He was a pretty good lawyer. The law schools give us snotty Harvard and Yale brats who don't know nuthin bout birthin babies. None of the nine on the U.S. Supreme Court has ever defended a criminal defendant in a felony jury trial. Not ready for prime time.

Posted by: Liberty1st | Dec 24, 2016 10:48:45 AM

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