DESIGNED TO FAIL: THE PRESIDENT'S DEFERENCE TO THE DEPARTMENT OF JUSTICE IN ADVANCING CRIMINAL JUSTICE REFORM.

• Author: Barkow, Rachel E.

TABLE OF CONTENTS INTRODUCTION 390 I. THE DEPARTMENT OF JUSTICE AGENDA 395 A. The Prosecutorial Mindset 397 B. Structural Factors Creating Bias Against Reform 400 II. THE DEPARTMENT OF JUSTICE RESPONSE TO REFORM PROPOSALS DURING THE OBAMA ADMINISTRATION 404 A. Department of Justice Resistance to Criminal Justice Reforms 405 1. Sentencing Reform 406 2. Clemency 425 3. Compassionate Release 441 4. Forensic Science 449 B. The Department of Justice's More Aggressive Pursuit of State Reforms 454 III. REDESIGNING THE EXECUTIVE BRANCH AND USING THE APPOINTMENT POWER FOR INSTITUTIONAL REFORM 456 A. Presidential Criminal Justice Advisory Commission 459 B. Presidential Clemency Board 461 C. Applying Office of Information and Regulatory Affairs Review to Criminal Justice 463 D. Appointments 466 1. Department of Justice Appointments 467 2. The Judicial Branch 471 CONCLUSION 473 INTRODUCTION

If you follow criminal justice policy in the United States, two themes dominate the discourse of the past several years. First, large portions of society have awakened to America's record-breaking levels of mass incarceration and criminalization. One out of every three adults possesses a criminal record, (1) and our levels of incarceration have no equal anywhere else in the world. (2) Second, and relatedly, there has been a bipartisan call to reform this state of affairs because it is not necessary for--and often undermines--public safety and because its costs outweigh its benefits. (3) News articles continually tout criminal justice reform as one of the few areas to bring together many Republicans and Democrats, (4) even in Congress where common ground is hard to find. (5)

If you move beyond the rhetoric and focus on the reality, however, not much has changed, even during the Obama Administration when the President had a stated commitment to getting smart on crime and rolling back harsh punishments. Indeed, President Obama's support of reform was so strong that in the waning days of his time in office, he published a law review article entitled The President's Role in Advancing Criminal Law Reform, which highlighted his accomplishments and what he saw as "the tools Presidents can use to effect meaningful change throughout the system." (6) Yet his achievements in this area were modest at best.

Because criminal justice is "administered at all levels of government and shaped by a range of actors," (7) the federal government can only do so much to tackle the broad tragedy of mass incarceration. But the federal system is one of the largest jurisdictions in terms of total imprisonment, (8) and it also often sets an example for states through its policies. Many commentators are quick to place most of the blame with Congress for stalled progress, (9) but significant criminal law reforms can occur with the use of executive power alone. Gains were modest under President Obama not because he lacked the power to do more, but because he followed an institutional model that was designed to fail. (10) Obama's failure to accomplish more substantial reform was largely rooted in the fact that his efforts were less about the President's role in advancing criminal law reform and more about the Department of Justice's role. (11) If future Presidents who share President Obama's hope for reducing the sweep of criminal law and punishment follow the same model of deferring to the Department to lead the way on progressive reforms, they will achieve, at best, the same minimal successes because of the Department's hard-wired institutional resistance to reforms that make things more difficult for prosecutors. (12)

It makes sense for the President to turn to the Department for input on criminal justice issues given its collective expertise and experience in the area, but we believe the Obama Administration is a case study that shows why the Department is precisely the wrong entity to put in charge of reform efforts. The 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. In many areas, reform would require the Department to second-guess its own prior actions. It is a classic conflict of interest, and it defies everything we know about human nature as well as government incentives to expect prosecutors in the Department to perform that task objectively and without prioritizing prosecutorial interests above other valid interests. (13) This is not to fault them or cast aspersions. They dutifully carry out the mission of the Department. But that is precisely why they are the wrong actors to lead the way on criminal justice reform.

In this Article, we will document numerous examples of how this conflict drove the Department's largely successful efforts to weaken, rather than further, the President's criminal justice reform goals. Notably, the areas in which the Department acted most boldly were in contexts in which its prosecutorial interests dovetailed with reform efforts or in which the Department itself would be unaffected by reform proposals. Thus, the Administration was most active in its efforts to foster state and local reforms that do not affect federal prosecution. (14) But in other areas involving the federal criminal justice system--areas in which reform would have made the Department's job harder--the Department resisted more significant change. (15) The Department was particularly resistant when a reform effort would require it to revisit decisions it already made. (16) Whether the decision involved retroactive adjustments to sentences already handed down, (17) commutations or compassionate release for those currently serving out prison sentences, (18) or rethinking the use of forensic science that had already been employed to obtain convictions, (19) the Department resisted second looks of its prior judgments. Yet that kind of retrospective reassessment is critical to reducing the existing prison population. In all of these areas, the Department placed its own interests ahead of the broader goals stated by the President for criminal justice reform.

We provide this retrospective as an important cautionary tale for any future President who wishes to change criminal justice policies in the United States to make them less severe. Whether a President is working with Congress or changing executive policies on his or her own, the President should get assistance from individuals focused on presidential priorities, not just prosecutorial ones. And that means the Department is the wrong leader for most of these efforts. Asking the Department to do so is asking it to be a judge in its own cause--the very definition of conflict and bias. (20) Even when people act with the best of intentions--and we have no reason to doubt anyone acted otherwise--it is asking too much of anyone to judge situations that involve his or her own interests as if he or she would be unaffected. While law enforcement views must be seriously considered as part of any reform, the analysis of criminal justice reforms must be made by people that represent all the relevant interests. The final decision must be made by policymakers who take a broader view and consider all the relevant interests, not just those of prosecutors.

Our analysis proceeds in three Parts. Part I begins by explaining why, as a matter of design, the Department is institutionally ill-suited to lead the way on criminal justice reforms because of the structure of the Department and its prosecutorial mindset.

Part II then shows how the Department's focus on its institutional self-interest has played out in practice. Section A documents numerous examples (sentencing, clemency, compassionate release, and forensic science) of the Department resisting common sense criminal justice reforms that would save taxpayer dollars, help reduce mass incarceration, and not undermine public safety. In other words, these are areas in which an objective decision maker with an open mind to reform would embrace changes (and indeed, often did, in opposition to the Department), but in which the Department opposed changes out of its institutional self-interest. Section B provides further support for the argument that self-interest largely underlies the Department's resistance to criminal justice reforms with numerous examples of the Department's eagerness to embrace bolder actions when its own interests were not at stake or when reforms would make its prosecutorial mission easier to achieve.

These examples and basic institutional design theory all point in the same direction: real criminal justice reform requires putting the right institutions in charge of criminal justice policy making. Part III thus offers institutional changes that would help future Presidents achieve the broader goal of reducing mass incarceration while maintaining public safety. The critical move is to place criminal justice policy making in the hands of individuals who balance prosecutorial interests against other costs and benefits and do not simply decide based on the institutional interests of prosecutors. We believe the President is best served by creating a commission within the Executive Office of the President to advise him or her on criminal justice policy matters. (21) An advisory body in the Executive Office of the President could also perform an oversight function over the Department by requiring it to explain why its policies stand up to cost-benefit analysis, promote public safety, and find support in scientific knowledge and data. (22) Part III also explains the importance of putting people with diverse experiences in criminal justice administration in key positions that affect criminal justice reform. This includes not only appointing people to leadership positions within the Department and agencies working on criminal justice issues, but also making...