President Obama’s Law Review Article--Critiqued

The True Value of Obama to Criminal Justice Reform Would Appear to be Zero
By: Bret Bucklen

Outgoing President Barack Obama released a new commentary in the Harvard Law Review entitled “The President’s Role in Advancing Criminal Justice Reform.”  While I’m pretty sure that very little of this commentary with his name on it was actually penned by him, it nonetheless has many of the elements that some of us have come to expect from this president.  First there is the trademark Obama arrogance threaded throughout.  More than half of the paper is dedicated to bragging about what he thinks he accomplished in terms of reforming the criminal justice system (did he mention how awesome he is?).  By quick count, the words “I”, “my” or “me” show up 147 times throughout the paper.  And to go along with the arrogance there is plenty of the trademark Obama condescension too.  The timing, tone, context, and content of this piece have the feeling of a playbook intended to “school” incoming President-elect Donald Trump’s administration on criminal justice issues, because after all, we all know Donald Trump and his team are too dumb to figure these things out (insert sarcasm here).

None of this mattered to liberal criminologists though (I know, saying “liberal criminologist” is like stuttering).  Criminologists were giddy with excitement as they took to social media, tripping over themselves to applaud Obama’s commentary, and blushing/bragging that he cited much of their work.  I wonder if they’ll be as excited when President Trump cites their work.  Never mind that much of Obama’s commentary actually contradicts what some of these same criminologists have been advising.  Take for example the very premise of the article.  The opening line states that “presidencies can exert substantial influence over the direction of the U.S. criminal justice system.”  Several prominent criminologists have pointed out that most criminal justice policy and influence is actually set by state and local criminal justice actors.  The administrative branch of the federal government has very little influence on the direction of the criminal justice system.  Again, even liberal criminologists, who generally love big government, argue this point.

There are at least 14 specific places where I think this commentary by President Obama get things wrong.  Here they are:

1. The criminal justice system is not racist.  Obama states that “we cannot deny the legacy of racism that drives inequality in how the criminal justice system is experienced by so many Americans. A large body of research finds that, for similar offenses, members of the African American and Hispanic communities are more likely to be stopped, searched, arrested, convicted, and sentenced to harsher penalties.”  No, more African Americans are stopped, searched, arrested, convicted, and sentenced to harsher penalties because disproportionally more African Americans commit the types of crimes that warrant this intervention and penalization by the criminal justice system.  The research demonstrating that reality is completely ignored by Obama.  For example, two seminal studies by prominent criminologist Al Blumstein concluded that differential involvement of blacks as arrestees accounts for between 76% and 80% of the disproportionality between black and white incarceration rates.  Blumstein concludes that “the remaining 20% of the disproportionality may be attributable to a variety of other explanations that are at least arguably legitimate, but may also reflect some unknown degree of discrimination based on race.” So does racism still show up from time to time in the criminal justice system?  Sure.  But the vast majority of racial differences can be explained by differences in criminal involvement.    
2. The “non-violent drug offender” is not driving “mass incarceration.”  This point has been made by liberal and conservative criminologists alike.  But Obama continues to point to the “non-violent drug offender” as a major driver of “mass incarceration.”  Less than 20% of the U.S. prison population are incarcerated for a “non-violent drug offense.”  And this does not even take into account criminal history.  Even for those who are incarcerated for a “non-violent drug offense” as their instant offense, many have violent criminal histories.  If we let out every single “non-violent drug offender” from our state and federal prisons tomorrow, we would still have an incarceration rate much higher than we did 40 years ago, and much higher than other comparable countries.
3. There is no good evidence that incarceration money would be better spent on universal preschool.  Obama comments that the money we spend on incarceration could instead be used to “fund universal preschool for every three- and four-year-old in America to keep them out of the criminal justice system in the first place.”  The American Enterprise Institute (AEI) provides the best recent summary of the research on preschool outcomes.  Their conclusion is that there are only 10 existing studies of the long-term outcomes of preschool, of which only 5 studies use randomized controlled trials, of which only 3 studies find any positive long-term outcomes, and none of the programs in those 3 studies were actually school-based preschool programs or universally provided. 
4. Crime costs a lot too.  At one point in his comments, Obama goes into a lengthy discussion about the collateral costs of incarceration, which are not evenly distributed across the population.  Liberals are good at searching for these collateral costs wherever they exist.  But what about the collateral costs of crime, also not evenly distributed?  As just one example, fear of crime is a cost of crime.  If a mother fears letting her child go to the park to play because she fears her child will be shot, regardless of how this fear matches with objective probability of victimization, that fear is a real cost.  While crime rates have gone down for the past several decades, there is little research that would indicate that the fear of crime has in fact dropped at the same pace.  There are no doubt many more indirect and intangible costs of crime that must go into the cost-benefit calculation of crime versus incarceration. 
5. Investment in social services as a crime-fighting alternative is an unproven proposition.  Obama criticizes our “tough on crime” history over the past several decades for its focus on “more personal responsibility and an end to welfare.”  In its place, Obama suggests investment in more social services.  There is very little evidence that an increased investment in social services will improve criminal justice outcomes and thus represent a better use of taxpayer dollars.  If you are a committed liberal and believe that more expansive government is the solution to just about everything, then you of course have a hard time believing this.  I challenge anyone to show me evidence that the crime drop since the mid-1990s had anything to do with increased social services.  Among the hodgepodge of explanations typically offered for the crime decline (more policing, better policing, more prisons, more abortions, less lead exposure, less open-air crack markets, etc.), nowhere do I see evidence of increased social services as an explanation. 
6. Obama had almost nothing to do with the recent federal prison population decline.  Obama claims that he did though.  To support this, he first points to the 2010 “Smart on Crime” change in federal charging practices under then Attorney General Holder’s lead.  This may have had some impact (indeed I probably think it did and it will), but there is no direct evidence that this change alone, made in 2010, somehow led to the federal prison population decline that started three years later in 2013.  Next Obama points to the “Fair Sentencing Act,” which reduced the disparity in penalties between crack cocaine and powder cocaine.  This was not his bill.  He does not get credit for this.  In fact, ironically, soon-to-be Attorney General Jeff Sessions was actually a co-sponsor of this bill.  Further, Sessions had previously introduced a similar proposal back in 2007 under President Bush, and before that, Republican Senator Orrin Hatch also introduced a similar proposal back in 2001.  Obama finally points to two different bills that haven’t even passed yet under his list of reasons why he is responsible for the recent federal prison population drop.  Nice try. 
7. We don’t know whether we are on the verge of a new crime wave.  Murder and some other violent crimes went up in 2015.  It looks like murder went up again in 2016.  This may end up being a complete anomaly.  Violent crime may revert to its previous path down.  But it also may continue to go up.  Obama states definitively though that “there is no growing crime wave.”  This is simply too strong of a statement to make.  We don’t know if there is a growing crime wave because we can’t know until we are far enough into it.  If I was the president, I’d take more caution with making such a definitive statement about the future.  Of all the superpowers Obama is purported to have, I didn’t think reading the future was one of them. 
8. Research on the effects of solitary confinement is abysmal, so we should proceed cautiously.  Obama indicates that studies suggest solitary confinement can have “strong negative consequences.”  What about the study funded by Obama’s own National Institute of Justice (NIJ), which found no evidence of a detrimental effect of solitary confinement, particularly for mentally ill inmates?  As a professional working in the area of corrections, I do believe there is room for reducing the use of solitary confinement.  But let’s not pretend we have a lot of good research on its impacts.  Let’s also be careful to walk a fine line between supporting policies that would carefully/appropriately reduce solitary confinement and policies that would ban its use altogether.  Under Obama’s discussion on reducing solitary confinement, he points to the example of the Nebraska Department of Corrections where they recently banned altogether the use of solitary confinement as a disciplinary sanction.  Bad idea.
9. Private prisons aren’t the problem.  Obama boasts about his efforts to end the use of private prisons at the federal level.  Private prisons account for only about 6% of state prisoners and 16% of federal prisoners.  If we’re looking to save money, we’ll not get very far if we don’t look at the real driver of prison costs which is publicly-run prisons, heavily influenced by public-sector unions.  Public unions benefit from maintaining the status quo of high incarceration rates just as much, or even more, than those “evil” private prisons who are supposedly only driven by the bottom line profit.  Once again, the demonization of private prisons is an issue that even some liberal criminologists recognize is over-exaggerated.  
10. What about all of those clemency petitions that weren’t granted?  Obama brags that he granted more commutations than all of the past eleven presidents combined.  That much is true.  He granted a total of 1,023 commutations during his presidency.  But when you add in pardons, he only granted more total clemencies than the past three presidents combined (a total of 1,093).  Further, what he doesn’t tell you is that he received three times the number of total clemency requests as President George W. Bush, and more total clemency requests than all of the past eight presidents combined.  His clemency grant rate of 3% is only a single percentage point higher than President George W. Bush, and is lower than every single president before that (Clinton’s grant rate was 6% and George H.W. Bush’s grant rate was 5%).  In the article, Obama points to a quote by a scholar to highlight the disappointing use of clemencies before he rushed in to save the day (again, insert sarcasm here): “It became hard to tell what distinguished the handful of lucky winners from the thousands of disappointed suitors.”  He analogized it to a lottery process.  I agree Mr. President.  It does seem like an arbitrary lottery system, especially under your lead where your clemency grant rate was lower than every single previous president except for your immediate predecessor (and just barely higher than his).  What happened to those many thousands of applications that were denied?  Were they undeserving?  I thought you told us that our prisons were filled with so many “non-violent drug offenders.”  Surely you could’ve processed more.  Or is this good old government efficiency in application processing (once again, insert sarcasm here)?
11. Cops aren’t the problem.  In all fairness, Obama confesses that the vast majority of cops are “fair, dedicated, and honest public servants.”  But he then goes on to say, “there are still too many places in America where these relationships [between cops and the community] are strained and where officers and community members have struggled to build and maintain trust.”  I don’t know about “too many,” but I actually kind of agree with this statement too.  Cops and the community indeed need to work together to “build and maintain trust.”  The problem is that Obama then goes on to outline a bunch of things that need to be done to fix the cops.  What about the community’s responsibility?  Obama talks about his role as the president to use the bully pulpit.  Well use it then.  He admitted that building and maintaining trust is a shared responsibility, but then focuses only on one side of the equation for fixing problems where they exist.  At the least, I think Obama could’ve used the opportunity to call for the community to show more deference and respect for law enforcement.  One gets the real feeling that he doesn’t really believe his previous statement after all, that the vast majority of cops are “fair, dedicated, and honest public servants.”  
12. We still don’t know if providing college courses for inmates reduces recidivism.  One accomplishment Obama touts is bringing back the federal Pell grants on an experimental basis, under the Second Chance Pell pilot program, to provide funding for inmates to take college courses in prison.  The history on this is that Pell grants were previously available to inmates to take college courses, but were eliminated under President Clinton in the 1990s because of the public outcry that federal funds were being used to support college courses for inmates over college courses for law-abiding students.  This turned out not to be true, but this was the perception.  And regardless, it was a federal investment of money in something for which there was little to no solid evidence of a good return on investment.  There has never to date been a randomized controlled trial where inmates are offered college courses on a truly experimental basis.  I have no doubt that inmates who sign up to take college courses will have lower recidivism rates than those who don’t sign up.  That says nothing about the ability of the college courses themselves to reduce recidivism though.  We still don’t know that impact, and we should know that before counting it as an accomplishment.  To Obama’s credit, this is why he brought the Pell grants back for inmates only on a pilot basis.  But until we gather that evidence, this shouldn’t be counted in the list of criminal justice reform accomplishments for Obama.  Pell grants may turn out to have a null effect. 
13. Don’t tell us we need to focus on guns and then turn around and tell us you’re not politicizing the criminal justice reform conversation.  Guns are not the problem.  Obama states that he believes “we can take commonsense steps to reduce gun violence.”  His small list of “commonsense” steps include expanding background checks and investing in access to mental health care.  There is absolutely no credible evidence that either of those targets will have any major, large-scale impact on reducing gun violence.  Guns are always the favorite demon of the left.  They don’t want to get down to specifics on what gun control efforts they think will actually work though, because they know that they don’t have any ideas that will in fact have a major impact without trampling up and down on the Second Amendment rights of U.S. citizens.  I’m all ears Mr. President, tell us more about what these “commonsense” steps are and how exactly they are going to work?     
14. Treatment under the Affordable Care Act (ACA) costs taxpayers a lot, but what is it buying us in return?  Obama rightly points to the opioid epidemic as a current major public policy concern.  His solution is to treat opioid addiction as a public health problem.  Ok so far.  He then points to how the expansion of Medicaid services under the Affordable Care Act (ACA) has allowed more opioid addicts to get medication assisted treatment (MAT).  It does appear that many types of MAT treatments are effective in reducing drug use and relapse.  Many types of MAT treatments are also extremely expensive though.  For instance, Vivitrol is an extended-release, injectable antagonist drug for the treatment of opioid and alcohol addiction.  Vivitrol also costs about $1,000 per shot.  Vivitrol is not recommended as a stand-alone treatment either, but rather is recommended to be used in combination with drug counseling or therapy (which also costs a lot of money).  We need better data on the cost-benefit estimates.  Is the size of the reduction in drug use from MAT worth the increased taxpayer cost for supporting such treatment?  I don’t think we know yet.  I’m all for the use of MAT to treat opioid addicts since they clearly seem to work, but the question here is who pays for it.  Taxpayers may be spending a dollar to get fifty cents in return.  Taxpayers deserve to know what they are getting for all the money that they’ve spent on these components of Obamacare.  Obama does nothing to address this point.   

​I think just about the worst thing we can do for criminal justice reform is to politicize it.  In his commentary, President Obama points several times to the bipartisan nature of current criminal justice reform.  I think he’s right.  There is a lot of bipartisan (or transpartisan, as I prefer to call it) opportunity for common ground when it comes to criminal justice policy.  Unfortunately, Obama’s commentary, while giving lip service to bipartisanship, does just about nothing to advance bipartisanship.  His piece instead politicizes criminal justice reform more than anything, which will ironically have the impact of not advancing criminal justice reform.  And let’s not forget that presidents cannot do much in the first place to advance criminal justice reform, so the premise of the commentary itself is misguided. 

Two famous criminologists (Michael Gottfredson and Travis Hirschi) once wrote a classic article in the field entitled “The True Value of Lambda Would Appear to be Zero.”  Well I say that the true value of President Obama to criminal justice reform would appear to be zero, or pretty close at least.