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May 6, 2017

"Designed to Fail: The President's Deference to the Department of Justice in Advancing Criminal Justice Reform"

The title of this post is the title of this notable new paper authored by Rachel Barkow and Mark Osler now available via SSRN. Here is the abstract:

One puzzle of President Obama’s presidency is why his stated commitment to criminal justice reform was not matched by actual progress.  We argue that the Obama Administration’s failure to accomplish more substantial reform, even in those areas that did not require congressional action, was largely rooted in an unfortunate deference to the Department of Justice.  In this Article, we document numerous examples (in sentencing, clemency, compassionate release, and forensic science) of the Department resisting commonsense criminal justice reforms that would save taxpayer dollars, help reduce mass incarceration, and maintain public safety.

These examples and basic institutional design theory both point in the same direction: real criminal justice reform requires putting the right institutions in charge of criminal justice policymaking.  This Article offers institutional changes that would help future presidents make the system less punitive and reduce prison populations to achieve the broad transformation that Obama desired but did not attain.  A critical move is to place criminal justice policymaking in the hands of individuals who can advise the president independent of the institutional interests of prosecutors.

May 6, 2017 at 02:34 PM | Permalink


I suspect the failure was intentional. That it gave Obama a chance to say the things his supporters wanted to hear while not actually doing anything that would create political risk.

Posted by: Soronel Haetir | May 6, 2017 4:53:41 PM

Time and again this initiative retreated from it's goal. This evaluation of the Department of Justice and it's influence on the Executive is a comprehensive look at why entrenched bureaucratic systems fail to meet objectives. This is especially true when various entities have their own institutional interests.

Now that I've made that wonky statement I'll cut to the chase. This initiative devastated thousands who had been given hope for mercy and compassion. It is so important to have this recap of the various failures and an articulation of the structural flaws that caused them. This structure was financially irresponsible and took an enormous human toll.

It is also important to be able to look at this initiative in a clear eyed way and examine the flaws and failures. Many are tempted to be swayed by partisan rhetoric and not confront the success or failures that were inherent in the process. Without an objective evaluation, these flaws will be repeated.

Posted by: beth | May 6, 2017 6:04:51 PM

Beth. The lawyer reptiles on this blog are not talking to me. Can you answer a question?

Aren't all falsely called non-violent drug dealers really serial killers of competitors? Or are they all like the Grateful Dead?

Posted by: David Behar | May 6, 2017 6:28:08 PM

word for word Soronel read my mind (or I read his). Nothing else to add, my thought exactly.

Posted by: Daniel | May 6, 2017 7:10:25 PM

Obama did various things but had limited political capital and many things in the air and opposition that made it easier to not attempt to do certain new things. He also on some level was relatively conservative minded regarding change. On some basic level, this made him rather unsurprising, though perhaps not if you have a fictional view of "St. Obama" or have high hopes for lots of change.

So, yes, it is easier for him to promote certain ideas -- the bully pulpit -- while actually doing less. "Less" is not "nothing that creates political risk." But, it's less than possible. It is yet again ironic "socialist" or other terms is tossed around suggesting he is so much more radical than he really was.

The paper provides some arguments to flesh out details. For instance, early on it noted resistance to change came "because the reforms would make the Department’s work more difficult, second guess its prior decisions, or run counter to its judgment based on experience (as opposed to data)." Later it, the paper argued the Administration was to "institutional," which again amounts to "more conservative."

I welcome such critique but the more liberal activist approach is harder given the political reality in the last few decades where Clinton came into power with a shift to the right & Obama came as someone who would "work with both sides" etc.

Posted by: Joe | May 6, 2017 8:39:45 PM

Barkow and Osler are pro-criminal extremists. We did have extreme reform, in US v Booker. It, and subsequent cases, with the charge led by Harvard Law indoctrinated Scalia, reversed the greatest achievement of the lawyer profession of the 20th Century, dropping the crime surge caused by the 1960's and 1970's pro-criminal Supreme Court by 40%.

They loosed the criminals. Now, black neighborhoods are paying the price in a surge in murders.

There is also no drop in crime. That is false news. There is a surge of crime, with tens of millions, if not hundreds of millions of additional crimes. There are at least 15 million identity thefts. Each yields an average of $5000, compared to $4000 for each bank robbery. Then left wing city administrations are forcing the police to place crime reports in the trash.

Hey, stupid lawyers, stop saying there is a drop in crime. You sound really stupid when you do. There is no group stupider than the lawyer in our country. There is no lawyer stupider than the Harvard Law indoctrinated stupid lawyer. For example, Rachel Barkow, Harvard Law grad. OK. Mark Osler graduated from Yale Law School, the second most stupid lawyers in our lawyer besieged nation. They know nothing about nothing. Both are know nothing idiots, except the promotion of the rent.

Posted by: David Behar | May 7, 2017 9:17:46 AM

Prof. Berman. A 1000 pro-criminal posts have taken place. Is not time for the one pro-victim post?

Posted by: David Behar | May 7, 2017 9:19:38 AM

@Joe writes, "It is yet again ironic "socialist" or other terms is tossed around suggesting he is so much more radical than he really was."

Not ironic, also intentional. Yertle and others in DC well understood who they were dealing with and knew that they could box Obama in rhetorically with the following formula: "do x and we will call you a socialist". And it worked. And in my view it was one of the details that help set the stage for the Garland debacle. If Obama had been a stronger, more forceful leader there is a plausible (not certain) claim that the Senate would not have tried to do what it did because Obama would make them pay.

I get really tired of the excuse making when it comes to Obama. Obama may be a nice guy, I even agree with him on some profound issues, but there is no doubt that he allowed himself to be rolled, spindled, and mutilated both by his enemies and by circumstances. He led by sticking his toe in the pool.

Posted by: Daniel | May 7, 2017 11:47:10 AM

Obama. Harvard Law grad. Indoctrinated to Blame America First and to Hate America Most. Affirmative action baby, all the way into the White House, so the American voter could falsely feel pious.

Once there, among the worst Presidents in history. Jimmy Carter class worst. Not Lincoln class worst.

Lawyer Lincoln was the greatest catastrophe ever. No one has come close. He had 850,000 Americans killed. He exploded the size of government, invented the income tax, enslaved white people in a military draft, and broke race relations for 100 years after his death. This lawyer was the very worst of the worst, in a class alone of the worst of all time.

Posted by: David Behar | May 7, 2017 12:02:58 PM

David Behar, if you do not like the selection of materials on the blog, you are welcome to go elsewhere. Indeed, because you again have multiple comments with the same tired rants against "lawyer reptiles," you are highly encouraged to go elsewhere. You get ignored here because you so often repeat the same anti-lawyer tropes again and again. And if you think my postings suffer the same flaw, please ignore them and go away.

Posted by: Doug B. | May 7, 2017 12:39:20 PM

Yes, ironic, a term that has a broad meaning these days as the people at Merriam-Webster will tell you. The fact that people are helped along here by messaging by Republicans is not denied. That is how such mistaken labeling often works out.

I don't know how Obama was going to make the Republicans "pay" for their treatment of Garland. Especially since he was going to leave office in January 2017. This magical thinking about the power Obama would have if he just was stronger and more forceful is part of the overall problem probably.

Calling Obama a "socialist" is part of a long term messaging plan by Republicans. But, even with the power of the Republicans, aided and abetted by others such as the media, the Obama Administration and Democrats did various things. Obama was not "mutilated" etc. He got things done & in the end was popular, his brand still in good standing. This very well might help the Democrats long term.

Posted by: Joe | May 7, 2017 1:14:27 PM

Explaining what happened is not merely "excuses," btw, and welcomed the critique of the article. But, the major changes recommended is hard. There are reasons why they don't come about. Those who bring forth such policies have a lot of things going for them, such as FDR having the Great Depression and a large supermajority with the Republicans a very tainted brand. And, even then, he had to compromise in various ways. He could be criticized for such things (such on race) but better to me to see WHOLE picture.

Posted by: Joe | May 7, 2017 1:19:08 PM


Your missing the point. The point isn't about some "magical" power of the presidency. It has none. The problem is that Obama didn't even try...the optics of that reality are crucially important. Once upon the time the presidency was called the "bully pulpit" but name a single person or issue that Obama tried to bully?! Politics is not just the art of the possible, it is the art of what your opponent thinks is possible. They Republicans knew it was possible to roll Obama and Obama never did anything to convince them otherwise.

Yes it is important to see the WHOLE picture and blaming Obama's lack of effort on circumstances is just one more excuse. There is a certain type of person--and @joe is one of them--who will never ever admit that they were just wrong about Obama the human being. The man who was to change everything changed nothing and thus his failures are always someone else's fault but his. That is what is refusing to see the whole picture.

Posted by: Daniel | May 7, 2017 3:03:25 PM

Doug. I would if I could make the lawyer go away. All social pathologies are 100% the fault of the lawyer profession.

I hope you get more pride in the craft of being a professor, and decide to present more sides of this subject. I consider your repetitive pro-criminal posts to be below your intellectual ability. I hope you decide to do better.

Posted by: David Behar | May 7, 2017 5:28:38 PM

We know lawyers are the stupidest people in our country, stupider than Life Skills Class students. Why are grads from Harvard Law and from Yale Law always the stupidest of all lawyers, such as Rachel Barkow and Mark Osler?

The admissions method.

They line up the applications by grade point average. Within the packs with the same grade point average, they rank them by LSAT scores. So said, Scott Turow, Harvard Law grad. They do not read essays or anything about the backgrounds of the applicants. So if you were a Navy SEAL who started a high tech company, it does not matter, only the GPA matters.


That means that all their applicants studied 80 hours a week, and experienced little else. When they graduate, they still do not know anything about anything, just memorized 7000 rules, the exceptions to the rules, and the exceptions to the exceptions.

Once there, these dunces, get hammered with even more gibberish to memorize. They get indoctrinated with supernatural doctrines. So now, they are not just ignorant, but they have false supernatural beliefs. They believe minds can be read. The future can be forecast. And, standard of behavior should be based on the character of a fictitious character. Why fictitious? So the standards may be objective, of course.

Their subsequent jobs just amplify this experience.

They end up stupid, ignorant, and believing in nutty ideas. That makes them the stupidest among the stupidest among the stupidest group of people in this country.

Posted by: David Behar | May 7, 2017 6:32:40 PM

David, I consider your repetitive anti-lawyer rants to be below the standards I am willing to continue to tolerate in this space given the repeated complaints I get from so many concerning your tropes and tripe. (Two+ in this post, a lengthy one to kick off comments in the next post.) I have warned you repeatedly, and you have suggested and shown that you cannot or seek not to control yourself. As A result, you may come to see some of your rants deleted if/whenever I feel they just regurgitate your well-worn complaints.

Posted by: Doug B | May 7, 2017 6:41:28 PM


I recall supremacy Claus said he would leave if "a certain person request ed
him to". I assume that person was you and you have now requested him
To leave. I doubt he will live up to his word. It is simply not
In him to be civil

I suspect you will just have to pull the plug


Posted by: Bruce Cunningham | May 7, 2017 10:33:05 PM

Please get rid of David Behar. I'm sick of seeing his pointless comments in this otherwise incredible blog.

Posted by: Annie Bafani | May 8, 2017 11:19:04 AM

Annie. Recidivism cannot be deterred. It can only be incapacitated.

Posted by: David Behar | May 8, 2017 3:50:56 PM

Annie. Recidivism cannot be deterred. It can only be incapacitated.

Posted by: David Behar | May 8, 2017 3:50:56 PM

Annie. Are you a feminist?

Posted by: David Behar | May 8, 2017 9:57:17 PM

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