Here’s What’s Wrong With The Justice Department

There’s a great piece by Mark Osler at The Marshall Project that highlights so much of what’s wrong about federal criminal policy.

Here’s its start:

Imagine an incoming president of the United States announcing that he or she would take advice on criminal justice matters exclusively from a Federal Defender’s office. Moreover, the new chief executive intends to put the defenders in charge of federal prisons, forensic science, and the clemency process. After all, the president might argue, the defenders understand federal criminal law from the ground up, have a rich understanding of the social conditions that lead to criminal behavior, and are the federal attorneys most responsible for ensuring individual Constitutional protections.

People would be outraged. Critics would complain that the defenders represent only one part of the justice system, and are inherently biased because their work in the courts is always on behalf of the accused.

Yet, somehow, the mirror image of that situation is our reality and goes largely unchallenged.

Impressively, it’s not a piece about the Attorney General’s new requirement that people should be sent to prison for as long as the law allows, regardless of whether that’s appropriate for the person who committed the crime and the nature of the offense. Which, for me at least, is refreshing. I’ve got so much Trump fatigue I’ve started reading Guns & Ammo just to have a change in subject. (I found I agreed with the core message about parenting in its recent criticism of smart gun technology, even though I find the fearmongering about a break-in slightly disturbing.)

Instead, much of the piece is about Obama. Obama is widely seen as a criminal justice reformer. He worked with Eric Holder to reduce mandatory minimums; he worked on helping people with criminal histories reintegrate into society; he visited a prison; heck, he even wrote an article for the Harvard Law Review about how much criminal justice reform he did. (Spoiler alert: he did a lot)

But one thing Obama didn’t do, was to change the institutional dynamics of who has a seat at the table when criminal justice policy is talked about.

As Osler’s piece notes,

A look back at the Obama administration — eight years with a chief executive who was pro-reform — illustrates the way that the DOJ is institutionally constructed to maintain the status quo. While it seemed President Obama was sincerely committed to reforming federal criminal law, his results were disappointing. And though some of this failure can be blamed on a recalcitrant Congress, that excuse only goes so far. A close examination of Obama’s record shows that many of the administration’s reforms were subverted by the DOJ, not Congress.

Career people carry out the details of policy changes all over the federal government. If you staff the career positions of the agency that oversees criminal justice reform with people who have spent their lives practicing in and justifying that system, you will have a very tepid kind of reform. The Deep State thwarts reformers of all kinds.

As a result, there’s a brake on reform that helps people accused of crime.

Olsen suggests a few ways to fix this:

A president who wants to honestly consider criminal justice reform, lessen the severity of sentences, and tackle over-criminalization needs to create something new: an advisor or commission that will listen to input from the DOJ but not be beholden to it.

There are other ready fixes, too. The president could subject DOJ policies to the same review that other agencies face — through the Office of Information and Regulatory Affairs — to ensure that the benefits of those policies outweigh the costs. A president committed to reform could also address the striking imbalance in federal courts, where ex-prosecutors — who make up 43 percent of federal judges — outnumber former public defenders by a 4-1 margin, despite the valuable experience that federal defenders bring to the bench.

For those of us concerned with reforming the criminal justice system, it feels a little precious to lament that Obama could have done more; kind of like complaining about the tax policy in Pompeii a year after Vesuvius erupted.

But structural change is in many ways more important than the change in a specific policy. Institutions, once created, tend not to go away. When progress on criminal justice reform comes out of hibernation from our current national winter, we’d do well to remember the value of having non-prosecutors at the table.

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Matt Kaiser is a white-collar defense attorney at KaiserDillon. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. His twitter handle is @mattkaiser. His email is [email protected] He’d love to hear from you if you’re inclined to say something nice.