Harvard Law & Policy Review

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ALEX WHITING: Through Actions and Words, President Obama has Promoted Criminal Justice Reform

President Obama’s eight-year term as President has corresponded almost exactly with a dramatic change in the national conversation about criminal justice. After decades of a tough on crime political consensus in this country, sentiment has shifted during the Obama years towards a recognition of the problems of mass incarceration and racial injustice in our criminal justice system. To be sure, some advocates were at this place all along, while others arrived at it from both the left and right for a variety of reasons, whether moral, financial, ideological, political, criminological, or pragmatic.

President Obama’s role in this debate has been important but also necessarily limited. Only about 10% of the nation’s approximately 2.3 million prisoners are in the federal system, and therefore the problems of mass incarceration and racial bias are primarily state issues. Moreover, criminal justice in the federal system is largely an issue for the Attorney General, who enjoys considerable independence from political actors, including the President. Finally, even the political consensus surrounding criminal justice has not always been able to overcome the political stalemate that is Washington, and therefore the President has not always been able to push criminal justice reform through Congress.

Nonetheless, Obama succeeded in making criminal justice reform a priority of his presidency, and he used tools at his disposal, as well as his national voice, to effectuate change and to shape the conversation about criminal justice.

On the legislative front, Obama’s biggest achievement was the Fair Sentencing Act of 2010, which reduced the sentencing disparity between crack and powder cocaine. The war on crack was a critical component of the tough on crime era, but in time the harsh penalties for crack came to be seen as excessively punitive and racially discriminatory.

Much of the criminal justice work in the Obama administration was spearheaded by Eric Holder, Obama’s Attorney General during the first six years of his presidency. In 2013, Holder launched a “Smart on Crime” initiative which sought to focus prosecutions on the most serious cases, enhance strategic thinking in investigations and prosecutions, adjust charging and sentencing practices to encourage greater use of discretion, and improve re-entry programs. Specifically, Holder instructed federal prosecutors to seek mandatory minimum sentences only when warranted by the facts of the specific case. The Department of Justice’s (DOJ’s) Civil Rights Division has also played an important role investigating police departments under its pattern and practice authority, as well as targeting fees and fines and bail practices that unfairly disadvantage poor people and people of color. Finally, the DOJ’s Office of Justice Programs has sought to fund criminal justice reform initiatives at the state and local level. In particular, the Justice Reinvestment Initiative seeks to assist states to identify ways to save money in the criminal justice system and reinvest the funds in evidence-based programs to increase public safety. In this way, the DOJ can promote and shape reform efforts beyond the federal sphere.

President Obama also used his executive powers to advance criminal justice goals. He ended solitary confinement for juveniles in federal facilities, banned the “box” requiring disclosure of criminal records on federal job applications, and tightened background checks for gun purchases. In 2014, he created the President’s Task Force on 21st Century Policing to study policing across the country, develop best practices, and make recommendations. Obama also used his clemency authority robustly in the last years of his presidency, granting relief to 944 prisoners sentenced to terms of incarceration that far exceed what we would impose today.

Finally, the President sought to shape the national discourse through speeches and White House roundtable discussions on criminal justice reform. In 2015, he became the first sitting President to visit a federal prison. These interventions have promoted frank discussion about the problems of policing, mass incarceration, and racial inequity.

In all of these ways, the Obama administration pushed forward criminal justice reform, despite the federal government’s limited role in law enforcement. Perhaps even more importantly, through its actions and words, the administration has helped promote and shape a national conversation about the need for reform. This may ultimately be the President’s lasting legacy, as it has become clear that a sustained political commitment is required to tackle the problems of our current criminal justice system. Now that Donald Trump has been elected to succeed Obama, there will no longer be this commitment in the White House. Reformers will need to concentrate even more intensely on the state and local level, where the core of the problems exist, in order to achieve progress.

Alex Whiting
Professor of Practice
Harvard Law Schol

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LAURENCE TRIBE: The Steadiness And Grace Of President Obama

One of the most impressive things about President Obama when he was just Barack to me, as my constitutional law student and research assistant at HLS in 1989-91, was Barack’s deep appreciation for history and for the impossibility of fully appreciating its unfolding while it is in the process of being made. Barack especially treasured the part of the Constitution’s preamble that spoke of our commitment over the generations “to form a more perfect Union,” and he took solace, ever since he was a first-year student at this law school, from the conviction that ours would always be an unfolding narrative – never completed, much less perfected.

I was of course thrilled and inspired, not to mention proud, when Barack took the oath as our 44th President on January 20, 2008 – an oath administered by another of my former students, Chief Justice John G. Roberts, whom I knew less well – and I have been enormously impressed by the thoughtfulness and integrity with which Barack Obama carried out the duties of that high office ever since. Given my no doubt unrealistically high aspirations for all he might accomplish despite the entrenched opposition he was destined to face as our first African-American president from the moment he assumed the position of POTUS, I have at times felt disappointment, sometimes acute disappointment, especially on the international front. But I have faith that history, such as it is, will render a glowing verdict on President Obama’s impressive achievements in the face of implacable opposition – even more glowing than one might expect from the unusually high national approval ratings that measure his esteem in the eyes of a fickle public as his two terms in office wind to a close.

Rather than making an attempt to itemize or summarize what I see as this President’s most enduring accomplishments, or to acknowledge what seem to me to have been his missed opportunities on the global stage, I would simply respect Obama’s own insight that history cannot be properly written from the vantage point of the present but requires the perspective of elapsed time for it to be reliably, even if always contestably, captured.

This much I know: Whether from the vantage point of the time I was privileged to spend in the Obama administration as this President’s and Attorney General Holder’s first Special Counselor on Access to Justice, or from the perspective of the academic perch I reoccupied upon returning to Cambridge, I will always treasure and long miss the steadiness and solidity of his control – not just of himself but of the compass guiding what, for want of a better term, I would join in calling the ship of state. For some, “no drama Obama” may have been a moniker emblematic of a certain distance and disconnection from the ordinary experience of the people he had the honor and burden to lead. For me, it represents a quality of calm and of reflection that, in our finest presidents, has always been an essential ingredient – a measure of grace and, when appropriate, of wit – whose absence we will all notice acutely once it no longer presides over the Oval Office.

Laurence H. Tribe @tribelaw
Carl M. Loeb University Professor and
Professor of Constitutional Law
Harvard Law School

 

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UPCOMING EVENT: Obama Legacy Symposium

In collaboration with ACS, DOS Grant Fund, and others, we bring you…

Ron Klain: The Economy & Ebola

Monday, November 14 at 12 p.m. in WCC B015

Serving as the “Ebola Czar,” chief of staff to VP’s Biden and Gore, and top debate prep advisor to a number of Democratic Presidential nominees are just a few of Ron Klain‘s many claims to fame in the political world. In Klain’s talk, he will discuss how President Obama made major domestic policy decisions, drawing on his experience overseeing implementation of the Recovery Act, serving as the Ebola Response Coordinator, and working in the VP’s office. Lunch will be served.

Ann Ravel: Campaign Finance

Wednesday, November 16 at 12 p.m. in Pound 101 

Federal Election Commission Director Ann Ravel, in conversation with HLS Professor Charles Fried, will discuss campaign finance reform through the heated election season, her work on a split and deadlocked FEC, her previous work as Deputy Assistant Attorney General for Torts and Consumer Litigation, and challenges for the future. Lunch will be served.

Jody Freeman: The Environment

Thursday, November 17 at 12 p.m. in B015

HLS’s Jody Freeman, former Counselor for Energy and Climate Change in the Obama White House, will discuss the President’s efforts to protect the environment and the challenges ahead. Professor Freeman served in the White House in 2009-10, where she was the architect of the president’s historic agreement with the auto industry to double fuel efficiency standards, launching the administration’s greenhouse gas program under the Clean Air Act. Lunch will be served.

RETROBAMA Blog Series

We’ve recruited the top experts, advocates, and administrators to share their thoughts on the President’s legacy on our blog in the coming weeks.

Here’s a sneak peek of what’s in store…

  • HLS Professor Alex Whiting will write on the President’s efforts to reform the criminal justice system
  • Chairman of the Legal Services Corporation John Levi on Obama and access to justice
  • HLS Professor Laurence Tribe on change and the man (Obama) himself
  • Commodity Futures Trading Commission Chairman Timothy Massad on efforts to bolster the economy
  • Jeff Zients, Director of the National Economic Council and Assistant to the President for Economic Policy, on responses to the economic recession

… but check our blog daily for some surprise posts from top administration officials and others.

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Upcoming HLPR Symposium: A Retrospective on the Obama Years

Mark your calendars!

Harvard Law & Policy Review and the Harvard Law School Chapter of the American Constitution Society are excited to announce that we will be hosting a symposium called “Forward: A Retrospective on the Obama Years.” The symposium will feature the architects, implementers, and advocates behind President Obama’s agenda, including several past and current members of the President’s administration. The symposium will include on-campus speaking engagements and online guest essays throughout November, with the majority of the symposium occurring over the week of November 13-19.

Our first speaking engagement will be tomorrow, November 2 at 12 PM in WCC 2004. This lunch lecture will feature Jonathan Greenblatt, former Special Assistant to the President and Director of the Office of Social Innovation and Civic Participation, who will speak about the President’s efforts to advance service, innovation, and civic engagement.

Please join us, and be sure to check our website, our Facebook page, and our Twitter page for scheduling updates!

#retrobama

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The Limited Impact of the Justice Department’s Pregnancy Discrimination Victory

By Kamika Shaw*

Earlier this week, the Department of Justice settled a pregnancy discrimination lawsuit against Florence, Kentucky. While the case is certainly a victory for the Justice Department and pregnancy discrimination activists, the outcome may have little impact on pregnancy discrimination claims generally, which are usually unsuccessful.

The Justice Department brought the suit under Title VII of the Civil Rights Act of 1964 and Title 1 of The Americans with Disabilities Act. The suit involved two pregnant police officers who patrolled Florence and requested light duty assignments for the duration of their pregnancies in 2014. The city denied both officers’ requests and gave them the choice of either either performing their normal patrol duties or taking unpaid leave. Prior to April 2013, the police department had allowed pregnancy-related light duty requests; subsequently, the department limited light duty work to employees who suffered employment-related injuries. Officers Trischler and Riley each decided to continue working, and later took a leave of absence. Pursuant to the settlement, Florence has agreed to adopt new policies that allow accommodations for pregnant officers and establish procedures for processing accommodations requests. Florence has also agreed to provide training for all employees who make personnel decisions related to accommodation requests pursuant to Title VII and the ADA. Lastly, Florence will pay officers Trischler and Riley $135,000 in compensatory damages and attorney’s fees. The settlement is pending approval by the U.S. District Court for the Eastern District for Kentucky.

This settlement is the Justice Department’s first since last year’s Supreme Court decision, Young v. United Parcel Service, Inc. The Court reinstated a pregnancy discrimination suit against United Parcel Service, and held that a genuine issue of material fact exists where an employee can demonstrate that an employer grants accommodations to a large number of pregnant workers, but fails to do the same for pregnant women. The result of the case was a decisive victory for the Department of Justice and the Equal Employment Opportunity Commission.

While the outcome in this instance is positive, most pregnancy discrimination claims are markedly less successful. Pregnancy discrimination complaints to the Equal Employment Opportunity Commission and local Fair Employment Practices Agencies grew from approximately 4,000 in the late 1990s to nearly 6,000 by 2011. Between 1996 and 2005, pregnancy discrimination claims increased 25%, with a startling 76% increase among women of color. Furthermore, low-wage workers face pregnancy discrimination at a higher rate than their higher earning counterparts. Importantly, despite the increase in claims, most cases are unsuccessful. In the case of officers Trischler and Riley, the context may have made this case easier to settle than most. EEOC claims rarely involve women in law enforcement, a field that is both male dominated and physically taxing. Given the particular context, this case may present a particularly clear and egregious instance of pregnancy discrimination.

However, the outcome here may have very little impact in cases where the facts are less clear-cut or sympathetic. If the current trend continues, claims of pregnancy discrimination will continue to rise, and women will continue to find little help from the legal system. To fulfill the purposes of the Title VII and the ADA, Congress may have to pass additional legislation. Congress twice considered a Pregnant Workers Fairness Act, which would mandate reasonable accommodations for all pregnancy-related limitations, but nothing has come of those efforts. Without further congressional action, outcomes such as the one attained by the Justice Department in this instance will continue to be the exception, rather than the rule.

*Kamika is a 2L at Harvard Law School and an Online Editor for HLPR.

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Workers’ Rights in the Balance

by Atty. Steve Churchill*

As The New York Times recently reported in a three-part series, employers increasingly are relying on mandatory arbitration agreements to force their workers to resolve employment disputes in arbitration instead of court (where a worker usually has the right to a jury trial). While arbitration can result in faster outcomes, it has well-known problems: it is prone to systemic biases in favor of employers, shields cases from the public eye, and provides only limited rights of appeal.

Perhaps more important, employers are using arbitration agreements to prevent workers from bringing or participating in class actions. Until recently, courts regularly struck down what are called “class action waivers” (or simply “class waivers”) under various state law doctrines – holding, for example, that such waivers violate public policy by preventing employees from effectively enforcing their rights. But that all changed as the result of a recent series of Supreme Court decisions, including key decisions that were decided by slim, conservative majorities. Now, when class action waivers are tucked into arbitration agreements, those waivers are effectively immune from attack under state law. That is so, according to Court’s recent decisions, because the Federal Arbitration Act broadly preempts any state law that disfavors arbitration.

The effect of this seismic shift cannot be understated. Employers accused of systemic abuses – such as misclassifying workers as independent contractors, failing to pay overtime, or engaging in a pattern of discrimination – can now force workers to bring claims individually. A notable example involves Uber, which successfully used arbitration agreements to avoid class actions. Prior to this recent change in the law, class actions were a more effective means of addressing widespread violations, because courts were willing and able to strike class waivers. Without class actions, fewer violations will be challenged, sometimes because the amount at stake is too small for an individual case, sometimes because an individual worker is too intimidated to take on an employer, and sometimes because workers are unaware of their rights. The end result: employers can act with greater impunity, with little fear of significant legal consequences.

The situation may change, however, thanks to a series of lower court decisions (including recent decisions by the Ninth and Seventh Circuits) holding that class waivers in the employment context violate the National Labor Relations Act, which gives employees the right to engage in concerted activity for their mutual aid and protection. Other courts have rejected that analysis, and there is now a deep split in the lower courts. Two cert petitions on this issue are pending in the Supreme Court. Given the deep split in the lower courts, as well as the high stakes for employers and workers, there is a strong likelihood the Court will take up this issue, either now or in a future case. Because recent arbitration decisions frequently have been decided along partisan lines, the outcome of the upcoming presidential election will likely be a decisive factor in determining whether employers can continue to use class waivers.

* Mr. Churchill is an employment attorney with over twenty years of experience and a founder of Fair Work, P.C. Since 2007, he has served on the faculty of Harvard Law School as a lecturer-on-law, where he teaches classes on advocacy skills and employment law enforcement strategies.