Commentary on “President Obama’s Criminal Justice Legacy: What Went Wrong”

This commentary is inspired by Dustin Palmer’s piece “President Obama’s Criminal Justice Legacy: What Went Wrong”, which can be accessed at:

In the last days of his presidency, Barack Obama published a lengthy article in the Harvard Law Review (HLR). The publication’s former head (during his time as a law student at Harvard), Obama’s selection of the law journal to express his views was not superficially surprising. As one reads and reflects on the piece, it becomes puzzling why he wrote such an article at all, and why he chose an academic article as his format.

Apparently, the original impetus for the article was not Obama. Rather, former HLR president Michael Zuckerman has stated that the editors of the publication reached out to Obama through Martha Minow, the former dean of Harvard Law School. They pitched him to write an article on criminal justice reform. It seems safe to assume that the details and exact scope of the piece were left up to Obama and his team.

The timing of the article is strange. Why did Obama not push for these goals harder while in the White House? Structural and partisan limitations aside, many of the issues profiled in the piece, as well as ending mass incarceration more broadly, did not form a centerpiece of Obama’s governing agenda. The piece functions as a hybrid retrospective and call to action curiously timed in the last month of his presidency. In a sense, the HLR has been co-opted as a political mouthpiece. Think what you will about Obama—the journal also published Ted Cruz in 2013.

Perhaps the article intends to solidify or restore Obama’s standing as a legal academic. In this sense, though, its tone is off. The article is written in the first-person. Throughout almost every section, Obama strives to highlight the efforts made by him and his administration to combat perceived problems. As such, the article functions more of a synthesis and less as a deep dive offering fresh information or perspective on one or multiple issues. One can see it almost as a report on his eight years of governance. Those of us who have tried to keep up with the Obama administration’s criminal justice policy walk away learning little. Viewpoints, most of them already clear, are solidified. Yet little new information or insight is granted.

And what about authorship? As University of Chicago law professor Will Baude pointed out, there is no note included in Obama’s HLR piece about additional contributors. This stands in contrast to a Journal of the American Medical Association article published by the president in 2016. In it, he gave credit to a number of collaborators whose contributions include “planning, writing, and data analysis,” as well as editing. Obama’s piece, also published in January 2017, on “The irreversible momentum of clean energy” in Science included a similar acknowledgement.

Baude’s colleague Eric Posner opined that there was “0 prob[ability]” that Obama himself wrote the HLR article. If this is true, his omission of credit for his collaborators is jarring and severely out of line with academic norms. It is difficult to imagine Obama researching and composing this piece all by himself in light of all his busy schedule, but he wants us to believe that this was indeed a solo effort.

Despite the odd lack of an acknowledgment of contributors to his HLR article, Obama’s reputation prior to politics was largely built on his career as an academic (as well as on his 1995 memoir—published in the same year as his first political candidacy, for Illinois state senate—Dreams from My Father). This law review article may constitute part of an attempt to recast himself into that role. Obama published three articles in academic journals during the final month of his presidency (the two discussed above as well as a short commentary in The New England Journal of Medicine).

One is left with a sense that the HLR article may represent more of an attempt to construct an individual legacy than to empower actual reform. It was clear by January 2017 that many of the gains in rethinking criminal justice policy of the previous eight years would be rolled back under Trump and his Attorney General Jefferson Beauregard Sessions. Yet Obama’s piece ends, like most of his speeches, with an optimistic declaration that, “I remain hopeful that together, we are moving in the right direction.” Ever an optimist, not once does he mention the incoming administration.

Yes, Obama’s administration made important gains in specific geographic and policy areas. But overall, it failed to shift the paradigm around criminal justice in our nation. In writing to the audience of the HLR, this failure was perpetuated. While it may reach the occasional lay reader, the piece’s formatting, length, and density surely scared off many potential readers (myself included). In this, Obama’s presidency proves to be more words over actions: rhetorical power, fit for us to remember fondly, without bold progress.