Four Ways the Obama Administration Has Advanced Criminal Justice Reform

President Barack Obama has been taking matters into his own hands on criminal justice reform recently, and his moves mirror executive action recommendations outlined in a Brennan Center report.

May 19, 2016

It’s clear our criminal justice system needs to be reformed. People may disagree on how to get there, but readily admit it’s time to reduce mass incarceration, and promote more equitable and fair policies. Federal lawmakers are making slow but important steps with pending sentencing reform legislation.

Meanwhile, President Barack Obama has been taking matters into his own hands and moving the ball forward through his own authority. Here are four things he’s done that mirror recommendations laid out in an April 2014 Brennan Center report, 15 Executive Actions.

1. Increase Commutations

The Brennan Center’s first recommendation for the president was to commute the sentences of individuals still locked up under overly-harsh drug penalties, particularly those sentenced under outdated crack guidelines. We called for a mass commutation that would retroactively apply the Fair Sentencing Act of 2010, recalibrating thousands of unjust sentences. A week after the release of the report, Obama announced his Clemency Initiative, a Justice Department priority to focus on reviewing and granting commutations (the presidential power to reduce prison sentences) for nonviolent prisoners sentenced under outdated drug penalties. Although Obama’s actions did not grant relief to all prisoners sentenced under the unfair crack guidelines (as the Brennan Center recommended) it is significant nonetheless. To date, the president has issued commutations to 306 individuals, more than the previous six presidents combined.

2. Create a Presidential Commission

The report also recommended the creation of a presidential commission to study mass incarceration and suggest high-impact reforms. In late 2014, following the killing of Michael Brown in Ferguson, Mo., Obama signed an executive order establishing the President’s Task Force on 21st Century Policing. It included a diverse group of stakeholders, chaired by former Philadelphia Police Commissioner Charles Ramsey and former Assistant Attorney General Laurie Robinson, to identify best practices in law enforcement and suggest possible reforms police departments could make to avoid future tragedies. Its final report was released in May 2015, and urged increased collaboration with community members, training, and implementation of a community policing model. Activists and presidential candidate Hillary Clinton have lauded the report’s recommendations. While the commission did not conduct in-depth analysis of the entire system, it both emphasized the need for improving law enforcement-community relations and decreasing the number of people coming in contact with the system in the first place. 

3. End Federal Financial Subsidization of Mass Incarceration

Currently, the federal government sends $3.8 billion in federal grants to states and cities for criminal justice purposes. Unfortunately, these grants largely go out on autopilot, pressuring states to increase the number of arrests, prosecutions, and imprisonment without requiring a public safety reason. In its report, the Brennan Center called on the president to revamp federal grants so that they only go to states that reduce both incarceration and crime. Much can be done through the president’s executive authority to redirect these grants.

In response to the tragedy in Ferguson, President Obama established the Federal Interagency Law Enforcement Equipment Working Group in May 2015. Its purpose: to review law enforcement acquisition procedures and use of military grade equipment and funding. In the following months, the group issued a set of recommendations to limit the types of equipment flowing to local law enforcement agencies, improve government oversight and tracking of this equipment, and increase training for agencies that receive it.

In February 2015, then-U.S. Attorney General Eric Holder marked the anniversary of the Justice Department’s Smart on Crime Initiative — an effort by the Justice Department to reduce unnecessary incarceration and violent crime — with a speech touting the success of the program. The measures he cited — an increased focus on violent and serious crime, decreased prosecutions for low-level, non-violent offenses, and a 20 percent drop in the number of people being charged under drug-related mandatory minimums — directly aligned with several Brennan Center recommendations regarding Success-Oriented Funding. 

The Justice Department unveiled similar changes to the federal government’s largest criminal justice grant, the Edward Byrne Memorial Justice Assistance Grant, which advocates contend has been financially subsidizing unwise drug war policies. The program’s new measures removed perverse incentives to increase unnecessary incarceration, including mandatory reporting on volume of arrests, amount of drugs seized, and the number of new drug-related cases opened.

All these changes are needed steps. But the Administration can and should go further to ensure that all federal resources – equipment and dollars – go toward legitimate public safety goals. A plethora of research and media articles have called on Washington to take this step. The President can do so by issuing an executive order to end the federal subsidization of mass incarceration.

4. “Banning the Box” for Federal Employment

In April, the federal government proposed a rule to ban “the box” — the question that asks applicants to disclose whether they’ve been convicted of a crime — on applications for federal employment. The rule will be finalized after a 60-day comment period.  Earlier this month, the Brennan Center joined 134 allied organizations on a letter to President Barack Obama, asking him to “ban the box” on job applications for federal contracting positions. These moves parallel the final recommendation in the Brennan Center report calling for such action.

Such a decision would bring 40 million jobs within reach of people with criminal convictions. In today’s tough job market, a checked box on an employment application often offers employers a simple method to narrow down saturated applicant pools. Unfortunately, this creates significant barriers to former prisoners getting jobs, no matter their qualifications. One study found that employers were 50 percent less likely to offer interviews to white applicants with criminal records than those without them. The effect was even more significant for African Americans, who were 64 percent less likely to be interviewed if they had a criminal record.

Defining applicants by their past mistakes, without considering their qualifications and potential, is unjust and unnecessary. Having served their prescribed sentences, former prisoners have repaid their debt to society. Yet the stigma of their criminal conviction continues to punish them and, in many ways, permanently relegate them to a second-class status.

The Obama administration has taken many steps in the right direction on criminal justice reform, from ban-the-box to the clemency initiative to creating a task force examining ways to improve the system. The United States remains the largest incarcerator in the world, with thousands more people entering the system every day. As the Obama Administration comes to a close, the president can go further, taking stronger action to help reform our justice system. More must be done - especially to end the incredibly harmful streams of federal dollars that incentivize mass incarceration.