« "Are debtors' prisons returning?" | Main | Justice Thomas (with Justice Scalia) dissents from cert denial in Second Amendment challenge to local assault weapon ban »

December 7, 2015

Extended account of much Obama executive ado so far still amounting to nearly nothing

Images (6)This past weekend, the Washington Post had this extended account of how and how long Prez Obama and former Attorney General Eric Holder have been talking about working toward significant criminal justice reform.  I recommend the entire piece, and here are some extended excerpts:

Thee summer after President Obama began his second term in office, he and then-Attorney General Eric H. Holder Jr. were relaxing and watching fireworks from a porch on Martha’s Vineyard. Holder was about to interrupt his family vacation to fly to San Francisco and deliver a speech unveiling their plans to make the most significant changes in the country’s criminal justice system in decades.

“I’m the only one who hasn’t seen your speech,” Obama said teasingly to Holder... But the president really already knew what Holder planned to say.

The text was the culmination of countless conversations over the years between Holder and Obama about how this country prosecutes and incarcerates its citizens. Obama had seen the racial disparities of the decades-long war on drugs close up as a community organizer on the South Side of Chicago; Holder experienced them as a former D.C. judge and prosecutor.  The two men met in 2004 at a small Washington dinner party shortly after Obama was elected to the Senate, and there was an instant connection. “We share a world view,” Holder said recently. “We kind of feel each other.”

Now, they were finally ready to act....

Laying out a three-part plan he called “Smart on Crime,” Holder said that he was directing his prosecutors nationwide to stop bringing charges that would impose harsh mandatory minimum sentences, except in the most egregious cases.  He called for more compassionate release of aging and ill inmates, more drug diversion programs as alternatives to prison and spoke of “shameful” sentencing disparities, a hint of Obama’s plans to use his clemency power to correct the disparities and release certain drug offenders early....

Nearly 2-1/2 years later, the administration’s major criminal justice overhaul has yielded mixed results.  Obama and Holder helped launch a national conversation about mass incarceration.  Last year, federal prosecutors pursued mandatory minimum sentences at the lowest rate on record — and sentencing reform legislation with bipartisan support has been introduced in Congress.

But some prosecutors are continuing to resist changes to mandatory minimum sentencing.  The initiative has also not yet made a significant dent in the number of inmates crowded into federal prisons.  Only 25 of the 531 elderly inmates who have applied for compassionate release under the new policy have received it.

And in the key executive action that Obama can take to undo unfair sentences, he has only granted clemency to 89 inmates of the thousands of federal drug offenders who have applied.  The president is expected to grant clemency to about another 100 prisoners in the coming weeks.

But Holder said he initially thought that as many as 10,000 of the federal prison’s nearly 200,000 inmates “were potentially going to be released” under the new clemency initiative.  Other Justice officials say the number is closer to 1,000 or 2,000. Criminal justice reform advocates are criticizing the president for moving too slowly and are calling on him to speed up the clemency process before his administration runs out of time.

“Given the president’s repeated concern about the numbers of people in prison serving excessive sentences, he has done little to alleviate the problem through clemency,” said Julie Stewart, president and founder of Families Against Mandatory Minimums.  “The president has all the constitutional authority he needs to do the right thing. Failure here cannot be blamed on partisanship in Congress.  If the president wants to correct past injustices, he can.”...

The real planning for how to unwind the country’s war on drugs began the summer before Holder’s speech. He and Obama anticipated a successful second-term election....  “Let’s go big,” Holder recalls Obama saying that August, again on the Vineyard.  “It’s gutsy.  It’s risky.  But it’s something we ought to do.”

A few months later, in January 2013, Holder directed his senior Justice officials to break into groups and bring him recommendations.  Holder and Obama were concerned about the backlash.  Could they pull off this huge reversal of drug policy and sentencing?  Would they be accused by Republicans of being soft on crime?

The pushback did come — but it was from within Holder’s own department.  In U.S. attorneys’ offices around the country, some prosecutors were supportive of the new policy, but others grumbled that Holder was taking away their most effective tool to get cooperation from drug offenders.  The organization representing line prosecutors wrote a letter to Holder and then went over his head and sent letters to top congressional leaders, urging them not to change the sentencing rules.

Regular readers know that I have been a persistent supporter of the Obama Administration's efforts to refocus criminal justice energies away from the war on drugs, and both Prez Obama and former AG Holder merit credit for helping to change the modern criminal justice reform conversation in the US. But I find quite frustrating and aggravating to hear that Obama and Holder were interested in doing something "big" and "gutsy" concerning the drug war given how little they have done so far that would merit the label big or gutsy.

Big and gutsy would involve granting thousands of commutations, not just dozens; big and gutsy would involve pushing hard on Congress and the Sentencng Commission to move away from drug quantities as the basis for long prison sentences; big and gutsy would involve advocating for bringing back parole eligibility for at least nonviolent drug offenders; big and gutsy would involve creating executive task forces with mandates to lower the federal prison population by at least 25% and to study how best to reform federal marijuana prohibtion; big and gutsy would involve tasking past and present GOP Govs who have championed state sentencing reform to propose possible reforms for the federal system.

Especially because Prez Obama still has a final year to make good on his desire to do something "big" and "gutsy," I am disinclined to give up hope that he can still bring more significant change to the most troublesome part of the nation's criminal justice systems.  In addition, when thinking of Prez Obama's likely sentencing legacy, he surely merits credit for appointing SCOTUS Justices and USSC Commissioners that have been pushing forward significant jurisprudential and doctrinal changes.  But as of this writing, the size, scope and operation of the federal criminal justice system in late Fall 2015 is practically speaking not very much different at all from what the system looked like in late Fall 2008.  Prez Obama has a lot of work ahead if he really wants things to truly be different in this space when he leaves the Oval Office.

December 7, 2015 at 10:02 AM | Permalink

Comments

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB