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Analysis

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; his moves mirror executive action recommendations outlined in a Brennan Center report.

  • Grainne Dunne
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the sentences of indi­vidu­als still locked up under overly-harsh drug penal­ties, partic­u­larly those sentenced under outdated crack guidelines.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commut­a­tions (the pres­id­en­tial power to reduce prison sentences) for nonvi­ol­ent pris­on­ers sentenced under outdated drug penal­ties.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.