President Obama’s Criminal Justice Legacy: What Went Wrong

Last month, President Obama published a commentary in the Harvard Law Review (HLR) titled “The President’s Role in Advancing Criminal Justice.”1 Noting that American presidents “can exert substantial influence over the criminal justice system,” he highlighted reform efforts from the last eight years, including: encouraging more flexible sentencing guidelines; reducing the crack and powder cocaine sentencing disparity; issuing new federal guidelines to stem the use of solitary confinement; commuting the sentences of over 1,000 federally imprisoned people; decreasing the federal prison population; and reintroducing Pell education grants for selected incarcerated people.

Most striking are not the successes, but the failures that the 50-plus page article ignores. What follows is a brief overview of the omissions and disappointments from the last eight years. It is only through an honest assessment of the failures that a refined reform agenda can emerge.

Highlighted Reforms Leave Out Crucial Context and Qualifications
In examining the Obama justice system reform agenda, there is no better place to start than the 2014 Clemency Initiative. The commutation of over 1,000 federally imprisoned people’s’ sentences is to be lauded. But is it a successful reform? Obama quotes an academic who said that by the time Obama took office, “the [clemency] process seemed to operate like a lottery.” Recall that at the launch, then U.S. Attorney General Eric Holder estimated that up to 10,000 incarcerated people would potentially be released.2 More than 44,000 hopeful applicants made appeals to the Clemency Initiative, yet only 1,715 received commutations – an approval rate of well under four percent. Despite the Attorney General’s press conference two years earlier, for applicants, the odds must have felt lottery-esque.

In fact, they were even lower than at first glance. Of the 1,715 clemency grantees, many were not applicants under the 2014 Clemency Initiative at all. For instance, 84 of the first 89 successful clemency petitions were not 2014 Clemency Initiative applicants, but rather recommended to the President through other channels.3 Perhaps that is why Obama’s pardon attorney, who oversaw the program, resigned in frustration in January 2016.4 On the subject of pardons (which critically expunge a criminal record, as opposed to simply shortening sentences), Obama was called “one of the least merciful presidents ever.”5

Next, consider the crack and powder cocaine sentencing disparity, a discredited policy that created, in Obama’s words “excessive and unwarranted punishments that fell disproportionately on defendants of color.” Since crack and powder cocaine are pharmacologically identical substances, there is little legal or evidence-based justification for any sentencing disparity. Under Obama’s guidance, the 2010 Fair Sentencing Act reduced the disparity from 100:1 to 18:1. Once again, “achievement” is in the eye of the beholder – was it a fivefold improvement, or a failure to use a window of reform to fix an obvious, costly injustice? Regardless, for years the administration argued6 – and won7 – cases to keep people imprisoned for nonviolent crack cocaine cases under the old “unfair” sentencing guidelines. Although eventually the administration relented and provided resentencing for some and clemency for others, Obama released only those who “earned a second chance” by completing a GED, a job skills program, or a substance abuse program. Nevermind that they had, in the president’s own acknowledgment, “already served far more time than the sentence they would receive today.” For a system defined by its broad reach, only the most exceptional were afforded more proportional (though still discriminatory) present-day punishments.

Finally, readers of the HLR article might be surprised to learn that most incarcerated people are ineligible for Pell Grants under a 1994 law, or that Obama’s “experimental” second chance education credit program constituted less than one tenth of one percent of total Pell spending.8 Of course, the reform will help some individuals. But it changed nothing about the underlying dynamics (in this case, imprisoned people’s Pell Grant ineligibility) that far outweigh any marginal changes. Once again, critical context was left out of the HLR article. In all three cases, reform efforts seem to function as a thin layer floating above deep injustices, able to interrupt the currents below only in rare and fleeting circumstances.

Quiet Rollbacks of Early Reforms
While the successes cited in the HLR are in many instances missing important context, other reform attempts are missing altogether. Two topics – federal civil asset forfeiture and transferring war equipment to police departments – illustrate the more common path of administration reforms under President Obama: early fanfare, followed by active backpedaling or worsened outcomes.

Civil asset forfeiture is a key concern for justice system reformers since it creates an environment ripe for corruption9 and overreach10. The practice exploded under the Obama administration. In 2014, the last year of available data, federal seizures far exceeded that of total burglary losses nationwide.11 Facing mounting criticism, the administration announced a near-total prohibition of the federal practice in December 2014.12 Attorney General Eric Holder called the new prohibition policy, “the first step in a comprehensive review that we have launched of the federal asset forfeiture program.”13 At the time, The Washington Post called it “the most sweeping check on police power to confiscate personal property since the seizures began three decades ago.”14

It lasted about a year. To succeed Eric Holder, President Obama nominated Loretta Lynch, who faced controversy over her own civil asset forfeiture practices during her tenure as U.S. Attorney of Eastern District of New York.15 She reinstated the program in full in March 2016. Let the record show: Obama oversaw a ballooning of civil asset forfeiture, temporarily stymied it with a narrowly-targeted policy, and then fully abolished those reforms a year later.

Journalists like Radley Balko have covered the rise of paramilitary forces in domestic policing for years. The practice leads to needless expense and tragic collateral consequences, while ruining police-community trust. In May 2015, after images of paramilitary forces armed with riot gear and tank-like Mine-Resistant Ambush Protected (MRAPs) vehicles in Ferguson, MO circulated the globe, Obama announced new policies to halt the transfer of some military-style equipment to local police departments and sharply control other types. In the HLR article, Obama writes:

In light of the potential of military-style equipment to undermine community trust, my Administration put in place a series of safeguards to strengthen accountability and enhance transparency of programs that provide such equipment … includ[ing] creating federal government–wide lists of “prohibited” and “controlled” items that apply across all such programs.16

What happened? The total value of military gear provided to police departments in fiscal year 2016 increased by $76 million, or nearly 20% from the previous year.17 In fact, FY2016 saw the second highest total ever. The much-trumpeted reforms, it turned out, only targeted seven types of equipment, many of which were infrequently transferred (like “weaponized aircraft” which had not seen a single transfer in the preceding 10 years). Local police departments received more than 80 MRAPs after the reforms took place – community trust concerns notwithstanding. With no meaningful reform, often poorly trained officers continued to deploy weapons of war in excessive force against everyday civilians, blurring the line between the military and the police. There were, unsurprisingly, painful collateral consequences for using weapons and tactics of war against a citizenry. Moreover, every dollar spent firing a tear gas grenade into a crowd of nonviolent protesters or topping up an MRAP’s gas tank is a dollar that could be used in rehabilitative services, educational expansion, or any other choice policy. Instead, Obama ensured that taxpayers paid more than ever to wage war against themselves.

“There is so much work to be done.”
So concludes the HLR article. In addition to the failures highlighted above, Obama cites seven more areas of “work unfinished” after his presidency. He specifically includes:

  1. Pass Sentencing Reform Legislation
  2. Take Commonsense Steps to Reduce Gun Violence
  3. Address Opioid Misuse and Addiction as a Public Health Issue
  4. Strengthen Forensic Science and Identify Wrongful Convictions
  5. Improve Criminal Justice Data Collection
  6. Restore the Right to Vote of Those Who Have Paid Their Debt to Society
  7. Make Better Use of Technology to Promote Trust in Law Enforcement

This is a lengthy reform list to bestow on any predecessor. Making even moderate progress on any one of these important seven would arguably outweigh the paltry reform successes Obama cites in the HLR. It is particularly disappointing that by the President’s own admission, little progress was made in these critical policy areas despite eight years of governance, including two years of Democratic control in both chambers of Congress and a favorable state-level justice system reform climate. It is hard to imagine these unjust policy failures will find an effective champion with as favorable political tailwinds any time soon.

Elephants in the Room

The biggest failure of the HLR article is the complete lack of acknowledgement of three defining features of the American criminal justice system under Obama’s stewardship: an active continuation of the War on Drugs, an unprecedented immigration crackdown, and a dramatic surveillance state expansion.

The War on Drugs Enters Its Fifth Decade
Obama does not mention the War on Drugs in the HLR article. However, its inexorable efforts marched on, and by some core metrics, even expanded under his watch.

As the Drug Policy Alliance noted in 2015, “[Obama’s] budget and the bulk of his drug policies continue to emphasize enforcement, prosecution and incarceration at home, and interdiction, eradication and military escalation abroad.”18 Obama oversaw far more medical marijuana dispensary raids than any previous president.19 While federal prosecutions tailed off in the second term, in every year his budget for drug-related law enforcement and interdiction activities exceeded all predecessors.20

This evident spending priority was echoed in drug policy formation. Lynch consistently argued that marijuana was more dangerous than alcohol despite ample and clear scientific evidence to the contrary.21 It is no surprise then that Obama left office with marijuana treated exactly the same at the federal level as when he entered. Today, it is considered a Schedule 1 controlled substance,22 meaning the federal government officially considers marijuana to have the highest potential for abuse and no accepted medical use (outranking drugs like cocaine, methamphetamines, and oxycodone). As Tim Dickinson of Rolling Stone wrote, “the deeper infrastructure of the War on Drugs remains fundamentally unaltered under Obama.”23 A December 2015 Government Accountability Office report concluded, “none of the goals of Obama’s drug strategy had been met.”24 Even in the last years of the Obama administration, after widespread state and local level legalization and decriminalization (unmentioned in the HLR article), far more people were arrested for simple marijuana possession than all violent crimes combined.25

For the President that famously admitted to doing marijuana and cocaine, the War on Drugs was business as usual.

Deportations and Immigrant Incarceration
The words “foreigner,” “immigrant,” and “deportation” do not appear once in Obama’s article. Yet, U.S. presidents exert far greater influence on immigration-related arrests, detention, and deportation than most other areas of the criminal justice system. More than 20% of the U.S. prison population is foreign-born.26 The Customs and Border Protection (CBP) agency is the largest law enforcement agency in the United States, and the combined budgets of the CBP and the Immigration and Customs Enforcement (ICE) Agency are comparable to that of the Department of Justice’s entire budget.

Perhaps this expansive area of the justice system was ignored because it rapidly expanded. Obama, as Sarah Lazare of Alternet noted, “forcibly deported more than 2.5 million people – a figure that does not include those refused entry at the border, self-deported due to the climate of fear, or died trying to reach safe haven.”27 In his first seven years in office, Obama oversaw more deportations than every other U.S. president combined from 1892-2000, according to the Department of Homeland Security Yearbook of Immigration Statistics. There is no pre-1892 data available, but extrapolating from the dataset trends, it is likely Obama forcibly deported more people than the first forty-two presidents combined.

These were not hardened criminals, despite administration rhetoric. The Obama administration targeted and deported thousands of children, many of whom had no legal representation, then defended the practice in court.28 Across the country, children as young as three years old faced court proceedings without their families or a lawyer at their side.29 Those that avoided immediate deportation arguably fared worse. In 2014, Obama oversaw a dramatic expansion of ICE “family detention” centers, where he detained even those mothers and children who had proven a credible fear of persecution in their home countries. The centers were compared to internment camps30 and for good reason – up to a dozen unrelated people share a single room amid horrific conditions.31 In the HLR article, under the section “Highlighting Ways The Juvenile Justice System Falls Short,” Obama writes, “As Americans, we have a shared responsibility to ensure that all children are given a fair shot at life…to pursue their dreams.” This noble aspiration is hard to square with the thousands of children – many American-born, American citizens – whose dreams and futures fester in detainment camps.

Many detained immigrants who were not placed in family detention centers met even more despairing fates. The ACLU and the Nation detailed the detained adult immigrants’ experiences in “uninhabitable,” stifling hot, 200-person tents rife with sexual abuse, negligent medical care, and open sewage.3233 These and other private immigration detention centers were carefully excluded from the administration’s rollback of private prison contracts for federal facilities, even though more people pass through the immigration detention system each year than all federal Bureau of Prisons facilities combined.34 Whatever reform outcomes Obama enacted in federal prisons is vastly outweighed by the human rights abuses he oversaw as the architect of a deportation and detention regime unprecedented not just in modern political history, but in the entire history of the United States. It is a black stain on his presidency.

Surveillance State Expansion
In 2013, Edward Snowden exposed the dramatic reach of the National Security Agency surveillance activities. While some of the revelations date back to the Bush presidency, the Obama years oversaw an unprecedented growth in the sophistication and reach of surveillance activities deployed against American citizens. A discussion of the modern surveillance state is outside this article’s scope, but a brief survey of surveillance activities under Obama includes:

  • Stingrays: Local and national law enforcement agencies increasingly deployed “Stingrays” –  suitcase-sized devices that mimic cellphone towers to capture or jam personal communications. The FBI, under Obama’s stewardship, instructs local law enforcement agencies to avoid disclosing the use of Stingrays to defense lawyers, judges, and even prosecutors.3536
  • Surveillance Planes: Every day, dozens of FBI spy planes registered to shell companies patrol US cities with sophisticated surveillance systems onboard.37 They are particularly active during demonstrations against the very justice system they seek to defend.38
  • Domestic Drones: The Pentagon has admitted to flying at least 20 drone surveillance missions over the United States in the last decade, but many law enforcement agencies have multi-million dollar drone budgets with little disclosed activity.39 They scan and photograph entire cities, with a camera resolution that can read a milk carton at 60,000 feet up.
  • NSA Data Sharing: In his last year in office, the Obama administration formalized a program to share NSA-collected data across domestic law enforcement agencies.40 This was already happening in practice,41 but Obama quietly formalized and expanded the program.
  • Facial Recognition: The FBI maintains a facial recognition database that includes about half of American adults and 410 million photos.42 Local police departments started including facial and iris scans in routine police work,43 even for those not arrested.44
  • Public-Private Surveillance: Very few technology companies protect user data from law enforcement. For instance, law enforcement agencies compelled Uber to share at least 12 million users’ ride data to local law enforcement.45 Yahoo built a special tool to help police scan and read users’ emails.46
  • Expanding Hacking Power: One of the Obama Justice Department’s last acts was to enact an executive office rule change allowing “unprecedented authority to hack into American’s personal phones, computers, and other devices” according to Senator Ron Wyden.47

In an earlier era, the idea of deploying spy equipment from the skies and setting up fake cell phone towers to surveil Americans en masse would be met with derision. The Obama administration made it a simple fact of life. Citizens’ rights to privacy were stripped bare in increasingly invasive and consequential ways, with little regulatory oversight or public disclosure. And Obama pioneered ways to make the information available to every modern Bull Connor at the local level. None of this is discussed in his HLR article, but it is a central theme of the last eight years.

The Injustice System Trudges On
Law reviews are an excellent place for professorial musings, but the weight of the law (and its failures) is borne by the people. After combing through the legalese, it is important to evaluate actions, not words. Obama’s rhetoric fits comfortably within the narrative of what supporters might have hoped would happen when a young former community organizer and constitutional law professor was elected president. The article itself, and its length, surely attempts to function as a “final word” on his justice reform efforts. Anecdotes about taking clemency participants to lunch or visiting a federal prison paint images of the compassionate, hopeful campaigner.

His actual record – on fundamental, defining aspects of the justice system – is much to the contrary. Failures to reform the War on Drugs, immigration abuse, police militarization, civil asset forfeiture, and the surveillance state left the criminal justice system not “smarter, fairer, and more effective” but undeniably worse. They are a national tragedy, and this failure will define his legacy.

Where does that leave the fight for America’s legacy?

First, it is vitally important to focus on big picture outcomes rather than press conferences or law review articles. Procedural excuses for the status quo are seductive, but counterproductive. Americans of all partisan leanings must not be satisfied with bite-sized reforms while the system continues to violate human dignity at astounding scale, every day. Seek out visceral opportunities to learn from those who have borne the brunt of our collective shame and to witness its routine and profound injustices. Then act.  

Second, for all its awesome power, the executive office will remain immobile or actively harmful to serious justice reform under even the most favorable conditions. All forms of political persuasion should be used to strategically demand a “smarter, fairer, more effective” system and to push back against the worst expansions of injustice. Tens of millions of people depend on these Sisyphean efforts.

Third, if presidents refuse to lead meaningful federal reforms, and the justice system operates largely at the state and local level, there is no choice but to bring extra intensity to reform efforts there as well. There are structural factors that may make state and local reforms more likely to succeed: tighter budgets, more immediate and visible evidence chains, and less calcified legislatures and governorships.  

There is a pressing responsibility to bridge the gap between dry, opaque outcomes data and the brutal, numbing, daily inhumanity generated by the American justice system.

There’s one place where I agree with the President: it’s hard to deny the urgent need for reform.

 


Dustin Palmer is a 2016 Luce Scholar and previously worked at the National Democratic Institute. He previously served as a Graduate Fellow in the New York City Mayor’s Office of Criminal Justice.

For a discussion of Obama’s potential intended audience and legacy building in his Harvard Law Review piece, read Brett Diehl’s commentary piece: http://carceralcomplex.com/2017/02/commentary-on-president-obamas-criminal-justice-legacy-what-went-wrong/.

 

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  2. http://www.washingtonpost.com/sf/national/2015/12/05/holderobama/
  3.  https://www.themarshallproject.org/2015/12/13/the-bureaucracy-of-mercy#.3lNagG1zR
  4.  http://www.politico.com/story/2016/01/obama-pardon-attorney-resigns-217874
  5. https://qz.com/677364/when-it-comes-to-pardons-obama-is-actually-one-of-the-least-merciful-presidents-ever/
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  9.  http://www.washingtonpost.com/sf/investigative/2014/09/06/stop-and-seize/
  10. https://www.theatlantic.com/politics/archive/2015/05/the-glaring-injustice-of-civil-asset-forfeiture/392999/
  11.  https://www.washingtonpost.com/news/wonk/wp/2016/03/28/the-feds-have-resumed-a-controversial-program-that-lets-cops-take-stuff-and-keep-it/?utm_term=.b7346242edce
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  13.  https://www.justice.gov/opa/pr/attorney-general-prohibits-federal-agency-adoptions-assets-seized-state-and-local-law
  14.  https://www.washingtonpost.com/investigations/holder-ends-seized-asset-sharing-process-that-split-billions-with-local-state-police/2015/01/16/0e7ca058-99d4-11e4-bcfb-059ec7a93ddc_story.html
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  16.  https://www.theguardian.com/us-news/2015/may/18/president-obama-limits-supply-military-style-equipment-police
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  26.  https://www.bop.gov/about/statistics/statistics_inmate_citizenship.jsp
  27.  https://www.salon.com/2017/02/11/obamas-lethal-deportation-machine-trumps-anti-immigration-measures-are-intense-but-nothing-new_partner/
  28.  http://www.politico.com/story/2015/11/under-16-and-ordered-deported-with-no-lawyer-215944
  29.  https://www.aclu.org/blog/how-can-3-year-old-represent-himself-court
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  37.  https://www.buzzfeed.com/peteraldhous/spies-in-the-skies
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  44.  http://www.nytimes.com/2015/08/13/us/facial-recognition-software-moves-from-overseas-wars-to-local-police.html
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  47.  http://www.reuters.com/article/us-usa-cyber-congress-idUSKBN13P2ER