Two highly-respected legal scholars, Rachel Barkow at NYU Law and Mark Osler at the University of St. Thomas School of Law, recently wrote an excellent article titled “Designed to Fail: The President’s Deference to the Department of Justice in Advancing Criminal Justice Reform,” which was published in the William and Mary Law Review. The thesis is straightforward: President Obama failed to achieve substantive change in criminal justice because his administration deferred too much to Department of Justice lawyers. The lesson is deep: public officials seeking to meaningfully reform the criminal justice system will be stymied if they give prosecutors a veto or a significant voice over a final proposal.
Professors Barkow and Osler make a compelling case to support their thesis by looking at “common sense criminal justice reform” efforts that nearly everyone agrees would save tax dollars, reduce mass incarceration, and promote public safety. In four areas of federal criminal justice system—sentencing, clemency, compassionate release, and forensic science—prosecutors substantially undercut the administration’s efforts to make the kind of progress that Obama proclaimed he sought. As a result—and despite his ambitions—Obama’s achievements were “modest at best.”
The article provides specific examples of prosecutorial intransigence across the four areas identified above. For example, in the sentencing context, DOJ lawyers and assistant US attorneys resisted the retroactive application of the Fair Sentencing Act—the law that reduced the disparate treatment of crack cocaine and powder—calling it a “windfall” rather than acknowledging that the law remedied a previous injustice. And, in the forensic science context, the Attorney General refused to accept or adopt recommendations from a damning report published by the President’s Council of Advisors on Science and Technology. Doubling down on junk science, the DOJ under Loretta Lynch did not behave much differently than it has so far under Jeff Sessions. Barkow and Osler point out that the DOJ’s unwillingness to accept baseline forensic science recommendations was “all the more disconcerting because [this] is an area in which the federal government often takes on a leadership role that influences the states.”
The authors acknowledge that the federal government is not the end-all be-all when it comes to criminal justice reform. States and localities play a major role in both perpetrating and redressing mass incarceration. Nevertheless, they are right that “the Obama Administration is a case study that shows why the Department [of Justice] is precisely the wrong entity to put in charge of reform efforts.” Or, more broadly, why making criminal justice reform contingent on prosecutorial agencies embracing or accepting it is doomed to fail.
Some of the article’s key insights should not be surprising, but they seem to be lost in the current dialogue. (After all, assuming President Obama was sincere in his desire to promote meaningful change, why did he deploy such a badly-designed system for implementing it?) Legislatures and executives around the country defer to District Attorneys when it comes to policymaking, accepting as gospel their recommendations and ignoring the well-documented reality that prosecutors’ ultimate goals are not perfectly aligned with justice and the public interest.
In the federal context, Barkow and Osler write that “[t]he Department is the agency charged with prosecuting federal criminal laws, and its views on reform are inevitably colored by its prosecutorial functions and a bureaucratic preference for maintaining a status quo that favors the interests of prosecutors.” However, prosecutors are often treated like wise, infallible guardians of public safety. Lo, they are human, and they act in profoundly and predictably self-interested ways. Their interests “include maintaining the [office’s] size and budget, protecting and enlarging the power and discretion of its prosecutors, and expanding the menu of options those prosecutors have by constantly growing the size of the  penal code and maintaining mandatory punishments.”
The authors underscore that problems arise when prosecutors are placed into the “dual role of advisory and interested party.” State legislators, governors, city councilmembers, and mayors should also take heed. If they are serious about change, they will consult with individuals who have diverse experiences and perspectives on the criminal justice system, not just prosecutors, but also public defenders, judges, victims, those wrongfully convicted, and offenders. Critically, they should give none of these constituencies a veto. Prosecutors for too long have occupied the pedestal. Hopefully articles like the thoughtful, clear, and well-written one authored by Professors Barkow and Osler will make clear that the pedestal is antiquated, obsolete, and was inappropriate from the start.