I doubt any president has been as well equipped as Barack Obama to appreciate the vicious cycle of American crime and punishment. As a community organizer in Chicago in the 1980s, he would have witnessed the way a system intended to protect the public siphoned off young black men, gave them an advanced education in brutality, and then returned them to the streets unqualified for - and too often, given the barriers to employment faced by those who have done time, disqualified from - anything but a life of more crime. He would have understood that the suffering of victims and the debasing of offenders were often two sides of the same coin.
It’s hard to tell how deeply he actually absorbed this knowledge. In the Chicago chapters of his memoir, “Dreams From My Father,” Obama notes that in the low-income housing projects “prison records had been passed down from father to son for more than a generation,” but he has surprisingly little to say about the shadow cast by prisons on the families left behind, about the way incarceration became the default therapy for drug addicts and the mentally ill, about the abject failure of rehabilitation.
Still, when the former community organizer took office, advocates of reform had high expectations.
In March I will give up the glorious platform of The Times to help launch something new: a nonprofit journalistic venture called The Marshall Project (after Thurgood Marshall, the great courtroom champion of civil rights) and devoted to the vast and urgent subject of our broken criminal justice system. It seems fitting that my parting column should address the question of how this president has lived up to those high expectations so far.
I’ll begin by making his excuses. The president’s powers in this area are limited. The action (and there is a lot of it right now) is mostly at the state level. His first term was entangled in economic crisis and health care. This president has faced tireless and often petty resistance from the Republican House on almost every initiative. Historically Democrats have risked being Willie-Horton’ed if they don’t maintain a tougher-than-tough-on-crime posture. And African-American constituents - who are also disproportionately the victims of crime - are not necessarily bleeding-heart voters. In short, it was probably naïve to assume that Obama was going to be the Criminal Justice Reform President.
And yet Obama took office at a time of tidal shifts. The economics of imprisonment, the ebbing of crime rates, the horror stories of overcrowded penitentiaries and the persistent activism of reform advocates had begun to generate a public consensus that merely caging people is not a crime-fighting strategy. Fiscal conservatives alarmed at the high cost of incarceration, evangelicals shocked by the waste of lives, and libertarians who spotted another realm of government power abused have clambered onto what was once a liberal bandwagon. (How much those conservatives will be willing to invest in alternative ways of protecting the public - drug treatment, more intensive parole and probation programs, job training and so on - is another question.)
In his first term Obama did not make this a signature issue; he rarely mentioned the subject. But his proxy, Attorney General Eric Holder Jr., was outspoken from the start. Six months into the first term, he was already at the Vera Institute of Justice in New York talking about the social costs of mass incarceration and pressing for policies that would divert low-level drug offenders to treatment and ease the re-entry of former prisoners into a productive life. In the last five years, Holder has become increasingly bold, and encountered little backlash. This month he exhorted states to repeal policies that deny felons the right to vote, policies that disenfranchise 5.8 million Americans, including nearly one in 13 African-American adults. He framed it not just as an act of compassion but as a way of re-engaging prodigal souls.
In practice, the administration’s record has been more incremental than its rhetoric. By the crudest metric, the population of our prisons, the Obama administration has been unimpressive. The famously shocking numbers of Americans behind bars (the US, with 5 percent of the world’s people, incarcerates nearly a quarter of all prisoners on earth) have declined three years in a row. However the overall downsizing is largely thanks to California and a handful of other states. In overstuffed federal prisons, the population continues to grow, fed in no small part by Obama’s crackdown on immigration violators.
The administration has some achievements to tout. Obama signed the 2010 Fair Sentencing Act, and has put some muscle behind the Smarter Sentencing Act, two measures aimed at making drug-sentencing laws less absurd. Holder has issued guidance to prosecutors to avoid routinely seeking maximum sentences for low-level offenders - though it’s not clear yet whether prosecutors are going along. The administration created an Interagency Reentry Council that uses federal guidance to whittle away at the barriers to employment, housing and education so that released prisoners have some hope of becoming productive citizens.
Obama has also been the stingiest of recent presidents in using his powers of pardon and commutation to undo the damage of the crack panic and of sentencing that keeps prisoners in lockup long past the age when they represent a danger. Marc Levin, director of the Center for Effective Justice at the Texas Public Policy Foundation, a conservative think tank with a justice reform agenda, points out that in his first term Obama pardoned one in 50 applicants while Ronald Reagan pardoned one in three. Late last year Obama commuted the sentences of eight drug offenders, out of more than 8,000 federal convicts serving time under outdated crack laws.
Obama is, we know, a cautious man, leery of getting ahead of public opinion and therefore sometimes far behind it. And some reform advocates argue that it made sense for Obama to keep a low profile until a broad bipartisan consensus had gathered. That time has come. Now that Obama-scorners like Senators Rand Paul and Mike Lee and even Ted Cruz are slicing off pieces of justice reform for their issue portfolios, now that red states like Texas, Georgia, South Carolina, Missouri and Kentucky have embraced alternatives to prison, criminal justice is one of those rare areas where there is common ground to be explored and tested.
The Obama presidency has almost three years to go, and there is reason to hope that he will feel less constrained, that the eight commutations were not just a pittance but, as he put it, “a first step,” that Holder’s mounting enthusiasm for saner sentencing is not just talk, but prelude, that the president will use his great pulpit to prick our conscience.
 “This is something that matters to the president,” Holder assured me last week. “This is, I think, going to be seen as a defining legacy for this administration.” I’ll be watching, and hoping that Holder’s prediction is more than wishful thinking. –NY Times