Imagine an incoming president of the United States announcing that he or she would take advice on criminal justice matters exclusively from a Federal Defender’s office. Moreover, the new chief executive intends to put the defenders in charge of federal prisons, forensic science, and the clemency process. After all, the president might argue, the defenders understand federal criminal law from the ground up, have a rich understanding of the social conditions that lead to criminal behavior, and are the federal attorneys most responsible for ensuring individual Constitutional protections.
People would be outraged. Critics would complain that the defenders represent only one part of the justice system, and are inherently biased because their work in the courts is always on behalf of the accused.
Yet, somehow, the mirror image of that situation is our reality and goes largely unchallenged.
Despite an obvious conflict of interest, the Department of Justice evaluates clemency petitions, runs federal prisons, decides what forensic evidence to introduce in federal cases, and advises the president on criminal justice reform. And make no mistake — prosecutors dominate the agency, with the 93 United States Attorneys playing the leading role in setting policies across a range of issues and career prosecutors running most of the divisions.
This defining characteristic matters, because a building full of prosecutors will instinctively push back against reforms that could make criminal law fairer, less retributive, and more productive. That may be most obvious when a president is hostile to criminal justice reforms, but it is also true when a president is progressive.
A look back at the Obama administration — eight years with a chief executive who was pro-reform — illustrates the way that the DOJ is institutionally constructed to maintain the status quo. While it seemed President Obama was sincerely committed to reforming federal criminal law, his results were disappointing. And though some of this failure can be blamed on a recalcitrant Congress, that excuse only goes so far. A close examination of Obama’s record shows that many of the administration’s reforms were subverted by the DOJ, not Congress.
I was recently a part of a research effort to review the Department’s positions on a range of criminal justice issues during the Obama administration, and what we found should be instructive to anyone who desires reform in the federal system.
The most significant federal reform during President Obama’s time in office was the reduction of all federal drug sentences and the retroactive application of that adjustment to people currently in federal prison. Almost 30,000 people had their sentences reduced by an average of two years under this policy shift, but that reform came at the hands of the independent and bipartisan Sentencing Commission, not because of the Department of Justice. And while the Department was willing to go along with some retroactive relief, it took the position that thousands and thousands of individuals should be categorically barred from having their sentences reduced.
But, where the Sentencing Commission was able to overcome DOJ resistance to sentencing reform, there was no such agency to insist on expanded clemency. So, while more than 1700 people were granted commutations under Obama, the DOJ ruled out countless others by barring anyone who had any kind of violence in their background from relief.
The Obama Administration and DOJ also rejected categorical relief, which would extend relief to a well-defined set of cases, such as to those individuals serving crack sentences under the old 100-to-1 ratio. (At the height of the crack panic, it took 100 times the quantity of powder cocaine to trigger the same sentence that you would receive for crack cocaine. When the disparity was reduced to 18-to-1 in 2010, the new standard was not applied retroactively.) Finally, perhaps most critical for lasting change, there was no structural reform of the clemency process, leaving the DOJ-led procedural morass in place.
We cannot know how much of the decision-making authority in these areas fell on the president versus the Department. But what we do know is that there is nothing in the Department’s involvement that would suggest it would be a bold leader on reform. Nor does the president have anyone else to turn to under our current governmental arrangement. The White House counsel is usually a civil lawyer tasked with protecting the president, and the Domestic Policy Council has proven unable to offer independent advice because it relies largely on the DOJ for data and expertise.
A president who wants to honestly consider criminal justice reform, lessen the severity of sentences, and tackle over-criminalization needs to create something new: an advisor or commission that will listen to input from the DOJ but not be beholden to it.
There are other ready fixes, too. The president could subject DOJ policies to the same review that other agencies face — through the Office of Information and Regulatory Affairs — to ensure that the benefits of those policies outweigh the costs. A president committed to reform could also address the striking imbalance in federal courts, where ex-prosecutors — who make up 43 percent of federal judges — outnumber former public defenders by a 4-1 margin, despite the valuable experience that federal defenders bring to the bench.
The DOJ will likely favor none of this, but that should not be a barrier, as it has been in the past. Future presidents who desire real reform should view the Obama administration’s experience not as a template, but a cautionary tale, and lead with authority. That means using both prosecutors and defenders as well as other criminal justice experts to achieve real and lasting reforms that benefit everyone.
Mark Osler is the Robert and Marion Short Professor of Law at the University of St. Thomas School of Law.