THE MISPLACED TRUST IN THE DOJ'S EXPERTISE ON CRIMINAL JUSTICE POLICY.

• Author: Hopwood, Shon

PRISONERS OF POLITICS: BREAKING THE CYCLE OF MASS INCARCERATION. By Rachel Elise Barkow. Cambridge and London: The Belknap Press of Harvard University Press. 2019. Pp. 291. $35.

INTRODUCTION

Criminal justice reform is in vogue. Experts from all sides of the political aisle agree that the criminal justice system is too big and too punitive, imposes too many social costs, and fails to adequately protect public safety. (1) Experts are not the only ones that understand the need for reform, as polling data consistently shows that a majority of Americans support criminal justice reforms. (2) Celebrities, like Kim Kardashian and Jay-Z, are intimately involved in national reform campaigns, (3) and there are more organizations and donor dollars to push for reform than ever before. (4) And reform has followed. Several states have recently passed reform measures on everything from money bail to increased discovery, sentencing, corrections, and collateral consequences. (5) Even the federal government has gotten in on the action: Congress recently passed, and the president signed, the First Step Act, a bill including sentencing and corrections reforms. (6) So one would think optimism is called for.

But criminal justice reform is only happening at the margins. That is especially true at the federal level, where policymakers have yet to significantly reduce federal incarceration rates or provide the resources for systemic reform necessary to end mass incarceration. (7) If reform can increase both public safety and fairness while reducing our reliance on imprisonment, then why are major reforms of the federal criminal justice system so difficult to obtain?

Professor Rachel Elise Barkow (8) lays bare the reasons why the criminal justice system is so impervious to large-scale reform in her terrific new book, Prisoners of Politics: Breaking the Cycle of Mass Incarceration. Her thesis is that the same political dynamic that created mass incarceration has also made broad reform difficult to obtain:

Elected leaders fear being labeled as soft on crime, so they aim to appear as tough as possible, even if there is no empirical grounding for the approaches they endorse. Members of the public respond positively to this posture because they do not understand the ways in which these various policies can backfire in the long run and make us less safe. And law enforcement officials stand ready to fight any significant changes that would undermine their almost complete discretion to operate this system to their own advantage. (pp. 8-9) She also argues that, by any empirical measure, the criminal justice system's poorly designed policies actually "increase the risk of crime instead of fighting it," unnecessarily "ruin[ing] lives," harming public safety, wasting billions of dollars, and imposing "catastrophic effects on millions of individuals and entire communities, especially poor people of color" (pp. 2, 5). The first part of her book is dedicated to demonstrating the failures of our current criminal justice policies, such as overly long sentences, insufficient support for rehabilitation, and unnecessarily harsh collateral consequences (pp. 17-18). She then explores the flaws in our political system that block reform (pp. 103-04). The third and final part of the book proposes a series of reforms (pp. 140-41).

To generate major justice reforms, Professor Barkow calls for institutional changes, such as placing checks on individual actors like prosecutors (Chapter Eight). She also argues for removing criminal justice matters from populist politics and instead lodging policy decisions with experts (pp. 14-16). I agree with her assessment of the problem and her solution to use an expert agency model to address criminal justice policymaking. That expert "body" would be "charged with analyzing all criminal justice practices to make sure they are promoting public safety and that the state (or federal government) is pursuing the least costly and least liberty-restrictive alternative to achieve a particular end" (p. 166).

In this Review, I address Professor Barkow's point about law enforcement resisting reforms, with particular emphasis on the Department of Justice's (DOJ) and the National Association of Assistant U.S. Attorneys' (NAAUSA) opposition to nearly any federal criminal justice reform. Federal prosecutors often claim that they just enforce the law--no more, no less. (9) But their actions show the contrary. Through presidential administrations of both parties, the DOJ and the NAAUSA have affirmatively opposed most federal criminal justice reforms on issues involving sentencing, corrections, and clemency (pp. 6-8). Oftentimes they weigh in on issues for which their prosecutors have no expertise. Even worse, they have thwarted the goals of the very presidents they serve, especially if the president sets out to reform the system in ways that infringe on the DOJ's prerogatives. If their opposition to reform were rooted in public safety or fairness, that would be one thing. But through their lobbying efforts, they often advocate for policies that make it easier for federal prosecutors to charge and incarcerate people--as if that is the only worthy goal of the federal criminal justice system. (10) And all too often federal policymakers--whether members of Congress, the White House, or the U.S. Sentencing Commission--have listened. As a result, there are now nearly 4,450 federal statutes and hundreds of thousands of federal regulations carrying criminal penalties, (11) excessively punitive federal sentences, (12) and a federal prison population that has increased by 618 percent since 1980. (13)

As should be clear, this is less a book review and more an in-depth exploration of a key point Professor Barkow makes in Prisoners of Politics as applied to the federal criminal justice system. Sure, we need expertise in order to make data-driven criminal justice policy decisions--as Barkow puts it, "[t]he key is to create and foster an institutional framework that prioritizes data" and "expertise" so as to "create incentives for key decisionmakers to be accountable for real results" (pp. 14-15). But in creating reforms, the kind of expertise is also important. Many federal policymakers currently view the DOJ and NAAUSA as possessing the most salient expertise on all criminal justice matters. This Review, I hope, calls that premise into serious doubt.

In Part I of this Review, I explain how the DOJ and NAAUSA have had a vise-like grip on federal policymakers when deciding criminal justice issues. In Part II, I detail their lobbying efforts in favor of longer sentences and against any reforms that would reduce sentences, and I explain why their claims against reform are flawed. Part III addresses the DOJ's and the NAAUSA's active opposition to criminal justice policies set by the presidents whom they serve because federal prosecutors seek to retain power to the exclusion of all other policy goals.

If we want a federal criminal justice system that reflects the goals of public safety, fairness, and equal enforcement, then federal policymakers should give less deference to the views of federal prosecutors because they do not possess the requisite expertise or will to move our policies toward those ends.

1. THE DEPARTMENT OF JUSTICE AND THE NATIONAL ASSOCIATION OF ASSISTANT U.S. ATTORNEYS HAVE ENORMOUS LOBBYING POWER IN WASHINGTON, D.C.

   As I quickly found out in the halls of Congress while advocating for the First Step Act, (14) sometimes the correct policy answers for federal reform don't matter to policymakers, even if those policy answers would make the public safer and the justice system more equitable. Policymakers are not always persuaded by the best public policy positions because they don't want to appear soft on crime or have a Willie Horton moment like Michael Dukakis did in his presidential race against George H.W. Bush in 1988. (15) Horton was a state prisoner in Massachusetts who absconded from a furlough program. A year later, he raped a woman and assaulted her boyfriend. Although the furlough program had a 99 percent success rate, Bush used Horton's example and Massachusetts Governor Dukakis's support for the program in attack ads. (16) As Professor John Pfaff has explained, criminal justice policy is a "low-information, high-salience" issue, meaning voters don't pay attention to mundane criminal justice issues but mostly respond to shocking events, such as Horton's crime. (17) The Horton ads contributed to Dukakis's loss in 1988, and ever since, policymakers have realized that "[e]ven smart leniency is politically costly, but severity is not." (18)

   Because congressional members are concerned about appearing soft on crime, they are much less likely to vote for criminal justice reform bills without political cover from law enforcement groups, which are thought to possess the most salient expertise on criminal justice matters. Political cover was necessary during the Senate negotiations leading up to a vote on the First Step Act, a bill mostly designed to reform the federal prison system. Despite the fact that police and prosecutors have no expertise on corrections policy, (19) it took support from the National Fraternal Order of Police (FOP)--and feigned silence rather than open opposition from the DOJ--before Senator McConnell called the First Step Act for a floor vote and members in the Senate felt comfortable voting for a modest reform bill. (20) But even though the First Step Act's passage was a win for criminal justice reform and sound public policy, the FOP endorsement came at a huge cost. In return for FOP's support, lawmakers decided against making many of the First Step Act's sentencing provisions retroactively applicable to people currently in federal prison. (21) So while Congress determined that these sentencing provisions led to needlessly punitive and unjust sentences, it would not correct the injustices for those who...