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Takeaways From Obama's Harvard Law Review Article

By Casey C. Sullivan, Esq. | Last updated on

President Obama returned to the pages of the Harvard Law Review last week, publishing a commentary on criminal justice reform in the journal he once edited. The 56-page article surveys the work the Obama administration has taken to address inequities in the criminal justice system while also detailing what remains to be done.

It's a strong defense of the president's criminal justice legacy, as well as a roadmap for future reform. Here are some of the highlights.

Surveying His Legacy: From the Fair Sentencing Act to Clemency

The president doesn't eschew the law review formula ("Part II shows how the President can drive significant reform," he writes in his introduction. "Part III details the approaches Presidents can take..." etc.) so we'll follow suit.

In the section dedicated to his administration's attempts at criminal justice reform, the President details the actions taken so far. These include reforms to federal charging and sentencing practices, particularly through the Fair Sentencing Act, which reduces disparities in federal sentences for crack and cocaine. They also include new DOJ guidelines mean to reduce the use of solitary confinement and reductions to the Bureau of Prison's use of for-profit prisons.

The president also highlights the executive's clemency power. This power "represents an important and underutilized tool for advancing reform," he writes. As Obama notes, presidents granted clemency an average of 222 times a year between 1885 and 1930, before it fell out of widespread use. President Obama reversed that, granting clemency to more than 1,000 individuals.

Driving State and Local Reforms

Much of the criminal justice system is outside the federal government's direct reach. Nonetheless, there remain several "levers of the federal government" that can be used to influence, rather than mandate, state and local reforms, according to the president.

These include: grants and funding incentives; guidelines and best practices; the creation of "communities of reform-minded jurisdictions"; DOJ civil rights actions; and presidential advocacy.

As examples of these, the president called out the DOJ investigation into the Ferguson, Missouri's use of excessive fines, which converted its justice system into "a cash register," and the creation of the White House's Data-Driven Justice Initiative and Police Data Initiative, two attempts by the federal government to use data to solve criminal justice problems.

Unfinished Work

Finally, President Obama concludes by surveying the work that remains. The list is long, but it includes:

  • Reducing gun violence
  • Addressing opioid misuse and addiction as a medical health issue
  • Identifying wrongful convictions
  • Improving criminal justice data collection
  • Restoring voting rights to those with felony convictions
  • Using technology to promote trust in law enforcement

As the president notes, comprehensive sentencing reform has failed to advance in Congress. "There remains too much bipartisan good-will and cooperation on this issue to let progress stall," he writes, noting that passage of the Sentencing Reform and Corrections Act "would be a good start."

When it comes to gun violence, "Addressing the country after mass shootings," the president says, "has been one of the most frustrating and disheartening responsibilities of being President -- and it's something I've had to do far too often." He suggests increasing mental health access, expanding background checks, and "making it possible" to keep suspected terrorists from obtaining firearms.

"There is so much work to be done," the president concludes. "Yet I remain hopefully that together, we are moving in the right direction."

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