With the passing of the presidential torch just days away, I’m mindful of the sharp contrast between President Obama’s criminal justice priorities and what we can expect from our new, incoming president. As we embark on the Trump years, we should pay attention to an important lesson from the Obama era about the disconnect between Obama’s stated concern for the criminal justice system and the very modest improvement he was able to secure. Given the limited reform accomplished during Obama’s tenure and Trump’s vocal disdain for the issue, we must recognize that the only progress that is likely in the near future will be at the local level.
In an essay in the Harvard Law Review published last week, President Obama discusses the importance he placed on criminal justice reform during his presidency. He approached the criminal justice system with the basic beliefs that: our country cannot afford to spend $80 billion annually on incarceration; our country should not be writing off seventy million Americans with some form of criminal record; and we need better reintegration programs for the 600,000 inmates released each year and the over 11 million men and women moving in and out of U.S. jails each year. Obama also expressly acknowledges “the legacy of racism that continues to drive inequality in how the justice system is experienced by so many Americans.”
But it is frustrating how little he accomplished on these priorities. The president speaks of deeply entrenched national problems only weeks away from exiting his eight years in office. And we soon will have President-elect Trump, a man with profoundly different priorities. Trump’s nominee for Attorney General, Jeff Sessions, is one of the country’s “loudest opponents” to criminal justice reform efforts.
To get a sense of the types of difference on the way, the Obama Department of Justice moved to phase out the federal use of for-profit prisons, which are a huge part of our country’s mass incarceration problem. Sessions, however, is deeply connected to the for-profit prison industry and is expected to immediately reverse that reform. President Obama commuted the sentences of more than a thousand people (and counting), nonviolent drug offenders who would be out of prison under modern sentencing guidelines. He has pardoned or commuted more offenders than the last 11 presidents combined. In contrast, Trump’s proposed-Attorney General Sessions is vocally anti-marijuana reform and has raised serious concerns that he might seek to federally prosecute growers, retailers, and users in the 29 states that have legalized medical marijuana. Even though what they are doing is legal under the states’ laws.
The take-away from how little Obama was able to dent our country’s criminal justice problems, despite his professed good intentions, and from Trump and Sessions’ antipathy towards criminal justice reform is that reform efforts will need to shift to the state and local levels. Goals for reform must include: electing/appointing reasonable prosecutors, rethinking juvenile justice, working on sentencing reform, improving prisoner reintegration, and removing barriers that prevent former offenders’ from successfully reentering society.
These reforms are needed to end systemic and counterproductive injustice in our legal systems. Obama writes, “I saw firsthand how our criminal justice system exacerbates inequality. It takes young people who made mistakes no worse than my own and traps them in an endless cycle of marginalization and punishment.” Trump is unlikely to concern himself with the trappings of inequality. We must.