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Obama Publishes Commentary on Criminal Justice Reform in Harvard Law Review

by Christopher Zoukis

Barack Obama made history by becoming the first president to contribute to legal scholarship by having an article published in a law journal while in office. The article, titled “The President’s Role in Advancing Criminal Justice Reform,” appeared in the January 2017 issue of the prestigious Harvard Law Review, a publication that Obama once headed as a student in 1990. He was the first black president of the journal.

The 56-page commentary focused on why criminal justice reform is necessary, what reforms were made during Obama’s tenure as president and the future of reform efforts. White House staff told reporters that the article was intended to keep the issue of criminal justice reform alive and moving forward in future administrations.

“It is my hope,” said then-White House Counsel Neil Eggleston, “that by publishing a piece of this scope in the Harvard Law Review, the president can educate the next generation of lawyers about these issues.”

The article begins with Obama’s understanding of why a fair and effective justice system is crucial to the success of a modern democracy, given the massive expenditures of the criminal justice system as well as current opinions on crime and punishment.

“We simply cannot afford to spend $80 billion annually on incarceration, to write off seventy million Americans – that’s almost one in three adults – with some form of criminal record, to release 600,000 inmates each year without a better program to reintegrate them into society, or to ignore the humanity of 2.2 million men and women currently in U.S. jails and prisons and over 11 million men and women moving in and out of U.S. jails every year,” the former president wrote.

“It would be a tragic mistake to treat criminal justice reform as an agenda limited to certain communities,” he added. “All Americans have an interest in living in safe and vibrant neighborhoods, in raising their children in a country of equal treatment and second chances, and in entrusting their liberty to a justice system that remains true to our highest ideals.”

During Obama’s term in office, he took an official as well as a personal interest in the push for criminal justice reform. Discussing his historic clemency initiative, Obama remarked, “I could have been caught up in the system myself had I not gotten some breaks as a kid.” He noted that he had commuted the sentences of over 1,000 federal prisoners while in office – “more than the previous eleven presidents combined.” [See: PLN, March 2017, p.12].

“While not a substitute for the lasting change that can be achieved by passage of legislation,” Obama wrote, “the clemency power represents an important and underutilized tool for advancing reform.”

The Harvard Law Review article also cited criminal justice reform legislation enacted during Obama’s presidency, as well as proposed reforms that failed to pass. The Fair Sentencing Act, signed in 2010, reduced (but did not eliminate) the disparity in sentencing between crack and powder cocaine offenses. Unfortunately, many other criminal justice and sentencing initiatives failed to become law. Obama highlighted the importance of seizing the opportunity to enact legislative reforms.

“I continue to believe that a historic moment exists to embrace the bipartisan momentum on this issue,” he stated. “There is no growing crime wave. We should all be able to agree that our resources are better put toward underfunded schools than overfilled jails and that many of those in our criminal justice system would be better and more humanely served by drug treatment programs and the receipt of mental health care. That kind of reform is good politics as well as good policy.”

In addition to emphasizing the need for Congress to act on criminal justice reform legislation, Obama cited the importance of efforts to reduce gun violence, address the opioid epidemic, reform how forensic science is used, improve data collection in the criminal justice context, make better use of technology in law enforcement and restore the right to vote for people who have been disenfranchised as a result of felony convictions.

It was a long, expensive and aspirational list. But as Obama wrote, “reform is about more than the dollars we spend and the data we collect.”

He concluded by observing: “How we treat those who have made mistakes speaks to who we are as a society and is a statement about our values – about our dedication to fairness, equality, and justice, and about how to protect our families and communities from harm, heal after loss and trauma, and lift back up those among us who have earned a chance at redemption.”

It is a sad commentary, then, that Obama did not do more while president to enact systemic criminal justice reform, leaving around 2.2 million people behind bars in the United States at the time he left office. 


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