Obama Takes Criminal Justice Victory Lap in Harvard Law Review

Obama's Harvard Law Review article outlines strides made in criminal justice reform, and a to-do list for the incoming administration.

Obama's Harvard Law Review article outlines strides made in criminal justice reform, and a to-do list for the incoming administration.

By Christopher Zoukis

Founded in 1887, the Harvard Law Review is probably the nation’s best-known journal published by law students. The author of the lead article in this January’s issue, who first made history by being the first African-American student elected president of the publication in 1990-91, did so again by becoming the first U.S. president to publish an article in a scholarly legal journal. Barack Obama’s contribution is an extensively footnoted 56-page commentary entitled “The President’s Role in Advancing Criminal Justice Reform.”

Appearing weeks before Obama vacates the White House, the article appears partly to be a legacy-burnishing project, setting out steps the president says he took to make the nation’s criminal justice system “smarter, fairer and more effective” in protecting public safety, adding criminal justice reform has been a focus throughout his career.

His greatest-hits list includes: curbing solitary confinement, passing legislation to reduce the sentencing disparity between crack and powder cocaine, “ban the box” orders preventing federal agencies and contractors from quizzing job applicants on their criminal records at early stages of their hiring process, expanding hate-crime laws to include sexual orientation, and helping create mentoring and other initiatives to keep young people away from crime.

While the article’s subject is familiar, the style is somewhat unusual for a scholarly journal. Wherever possible, the president’s first-person account notes milestone achievements and personal reflections. So the reader learns the president discovered early, while a community organizer, that the criminal justice system “exacerbates inequality” as early mistakes can trap youths in an “endless cycle of marginalization and punishment.”

The president notes he was the first president to visit a federal prison, the first since Jimmy Carter to see the number of federal inmates decline during his term, and has commuted sentences for more federal inmates than the combined total for the 11 presidents before him. In recalling his experiences consoling families of officers killed on duty and parents of children slain by guns, and meeting with prisoners being released into re-entry programs, the article employs the words “my” or “myself” about 70 times, “I” turns about almost as frequently, and the more collegial “we” and “our” together put in about 150 appearances. Besides liberally citing campaign documents, White House factsheets, and agency press releases and white papers, the article is not too modest to draw on the president’s memoir and speeches.

Obama’s article is divided into four main parts. The first makes a case for urgently needed criminal justice reforms, arguing the nation and the states cannot afford to expend $80 billion a year to incarcerate 2.2 million individuals, disregard the 70 million Americans with some form of criminal record, or “deny the legacy of racism” still affecting the criminal justice system. The second part recounts changes made during his term in the federal prison system, and the third focuses on ways a president can promote changes in criminal law at the state and local levels.

The final part of article leaves behind a to-do list of further changes the president would like to see, including bipartisan sentencing reform legislation which stalled during his term, additional gun control measures, countermeasures to epidemic-level opioid abuse, restoring voting rights for ex-prisoners, improvements to forensic science, and better criminal justice data.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com.