Designed to Fail: The President's Deference to the Department of Justice in Advancing Criminal Justice Reform

78 Pages Posted: 2 May 2017 Last revised: 7 Jun 2017

Rachel E. Barkow

New York University School of Law

Mark William Osler

University of St. Thomas - School of Law (Minnesota)

Date Written: June 1, 2017

Abstract

One puzzle of President Obama’s presidency is why his stated commitment to criminal justice reform was not matched by actual progress. We argue that the Obama Administration’s failure to accomplish more substantial reform, even in those areas that did not require congressional action, was largely rooted in an unfortunate deference to the Department of Justice. In this Article, we document numerous examples (in sentencing, clemency, compassionate release, and forensic science) of the Department resisting commonsense criminal justice reforms that would save taxpayer dollars, help reduce mass incarceration, and maintain public safety. These examples and basic institutional design theory both point in the same direction: real criminal justice reform requires putting the right institutions in charge of criminal justice policymaking. This Article offers institutional changes that would help future presidents make the system less punitive and reduce prison populations to achieve the broad transformation that Obama desired but did not attain. A critical move is to place criminal justice policymaking in the hands of individuals who can advise the president independent of the institutional interests of prosecutors.

Keywords: Criminal Law, Criminal Justice Reform, Sentencing, Clemency, Commutations, Pardons, Compassionate Release, Forensic Science, Appointments, CP14, President Obama, Presidential Oversight of Criminal Law

JEL Classification: K10, K14, K42

Suggested Citation

Barkow, Rachel E. and Osler, Mark William, Designed to Fail: The President's Deference to the Department of Justice in Advancing Criminal Justice Reform (June 1, 2017). William & Mary Law Review, Vol. 59, 2017; U of St. Thomas (Minnesota) Legal Studies Research Paper No. 17-08; NYU School of Law, Public Law Research Paper No. 17-16. Available at SSRN: https://ssrn.com/abstract=2961462

Rachel E. Barkow (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-992-8829 (Phone)

Mark William Osler

University of St. Thomas - School of Law (Minnesota) ( email )

MSL 400, 1000 La Salle Avenue
Minneapolis, MN Minnesota 55403-2005
United States
(254) 717-7032 (Phone)

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