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January 5, 2009

Any new thoughts about criminal justice as Prez-elect Obama fills out his Justice league?

As noted in this recent post, President-elect Obama today officially tapped Harvard Law Dean Elena Kagan to be the next Solicitor General.  In addition, as detailed in this official press release, the Obama team has also today named a number of other persons to fill key spots in the Justice Department:

Today, President-elect Barack Obama announced that he intends to nominate the following individuals for key posts at the United States Department of Justice: David Ogden, Deputy Attorney General; Elena Kagan, Solicitor General; Tom Perrelli, Associate Attorney General; and Dawn Johnsen, Assistant Attorney General for the Office of Legal Counsel.

President-elect Obama said, “These individuals bring the integrity, depth of experience and tenacity that the Department of Justice demands in these uncertain times. I have the fullest confidence that they will ensure that the Department of Justice once again fulfills its highest purpose: to uphold the Constitution and protect the American people. I look forward to working with them in the months and years ahead.”

I know these impressive folks only by reputation, but those reputations bode well for anyone (like me) hoping that the "change" mantra becomes a serious reality in the federal administration of justice.  Relatedly, regular readers may recall the name Dawn Johnsen from this post, which noted that she authored this terrific chapter from a publication by the Center for American Progress Action Fund, entitled "Change for America: A Progressive Blueprint for the 44th President."  That chapter included these important sentiments:

Although crime is largely a state and local responsibility, federal leadership can be enormously influential beyond the federal system through assistance that fosters innovation, supports research, and shares information about “what works” in combating crime....

Incarceration in the United States is an issue crying out for DOJ attention.  After holding steady for most of the 20th century, the federal prison population increased 10-fold in the last 25 years. The United States at all levels of government incarcerates more of its population than any other nation in the world, both in terms of the incarceration rate and in absolute numbers....

The costs, both financial and social, are astronomical.  DOJ should undertake affirmative efforts to decrease prison populations without endangering public safety.  Again, states can provide useful models for each other and for the federal government.  In response especially to budget crises, some states have successfully reduced incarceration rates without increasing crime.  DOJ should study, disseminate, and implement best practices, which include increased and improved use of drug courts and treatment alternatives to incarceration....

I sincerely hope that AAG-nominee Johnsen sustains a fierce commitment to deal with mass incarceration in the new Administration, and I also hope these other nominees share this perspective. 

With these appointments and modern economic realities and various notable jurisprudential doings, I am starting to become (dangerously?) optimistic that we could be on the verge of a new criminal justice era in the United States.  Perhaps readers can/should try to burst my optimism bubble so that I do not start expecting too much.

Some recent related posts:

January 5, 2009 at 12:58 PM | Permalink


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A criminal justice? Like appointing Blago to the SCOTUS?

Posted by: Chris | Jan 5, 2009 1:45:22 PM

With all due respect, every single high-level DOJ appointee announced thus far has been a Clinton re-tread. And, of course, Obama can't get rid of the career bureaucrats. I have VERY low expectations.

Posted by: Anon | Jan 5, 2009 3:01:36 PM

We aren't so concerned about the former appointees of the Clinton administration -- it was the Bush administration that we need to get away from. Johnsen took on Yoo and the horrible abuses of power by the Bush administration -- not the Clinton administration. I'm not sure why people aren't getting that. It's the last eight years that have put the nail in this country and our legal system.

Posted by: Debbie | Jan 5, 2009 3:47:47 PM

Most interesting, and most important, is the issue of sentencing on acquitted conduct. Will the views of Obama and his appointments reflect any change or do they disagree with the idea that respect for the jury's decision is fundamental to our system of law and justice?

Since posting about jury annulment and that movement to move the jury back to center stage, a Christmas present was a Barnes and Noble gift card, so I bought two books. Justice for All: Earl Warren and the Nation he Made, by Jim Newton, and America's Constitution: A biography, by Akhil Reed Amar.

Interestingly, Amar seems to back, intentionally or not, the jury nullification movement and has numerous entries in the index under "jury."

For example, at pp 61-62: "The president also had the right and responsibility to veto bills that violated his understanding of the Constitution. Beyond the veto, a president might refuse to enforce a statute that in his view contravened the higher law of the Constitution itself. If the law created criminal sanctions, a principled presidential refusal to prosecute violators would as a rule be unreviewable in court, as would a presidential decision to pardon anyone convicted or facing possible conviction under the law. Also, grand juries could refuse to indict whenever they doubted a criminal statute's constitutionality. Trial juries, widely viewed as the lower half of a bicameral judiciary, likewise had the power (and perhaps even the right and duty) to acquit with finality in such cases, even if the bench had already adjudged the law to be constitutionally sound."

I haven't read enough yet to know what Amar thinks disintegrated this power and duty, but my own guess is that the 1st A is largely to blame. When newspapers, and now all news, incites public outrage, the focus is never on any sort of balance with the other rights enumerated in the Bill of Rights. Usually "the big story" is based on the profit margin rather than concern and respect for the Constitution, and the courts, often subject to political pressure rather than guaranteed independence, often caved in. So, over time, the 1st A smothered the others.

Posted by: George | Jan 5, 2009 4:19:38 PM

Debbie, I'm not a big fan of the Bush admin either, but you're kidding yourself is you think the criminal justice system went off the rails in the last eight years. Would that it was so simple. Having lived through the Clinton years at DOJ, I can tell you that it wasn't much different.

Posted by: Anon | Jan 5, 2009 4:53:32 PM

I agree with anon above. I agree with Debbie that we need to get away from Bush's policies on many areas. But that shouldn't mean a Clinton retread. Debbie presents a false choice; there are many other alternatives.

Posted by: Daniel | Jan 5, 2009 11:31:36 PM

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