The First Step Act and the Brutal Timidity of Criminal Law Reform

Written By Mark Osler

Introduction

As President Donald Trump signed the First Step Act1 into law on December 21, 2018,2 a group of my friends, all veteran criminal justice advocates, threw out alternative names for the legislation: the “Last Step Act,” the “Baby Step Act,” the “Stutter Step Act.” The dark mood even at a time of victory reflected a learned reality: criminal justice reform, even when desperately needed, moves at the pace of a line at the DMV.

Almost unique among political issues, there currently exists a true bipartisan coalition in support of systemic and meaningful criminal law reform—a group so strikingly diverse that it has contained almost unimaginable combinations: both George Soros’s Open Society Foundations3 and Koch Industries,4 for example, and both Senator Mike Lee5 and Senator Bernie Sanders.6 Even President Donald Trump, who had historically shown no affinity for reforming a retributive justice system,7 used his State of the Union speech in 2019 to introduce clemency recipient Alice Johnson and declare that “Alice’s story underscores the disparities and unfairness that can exist in criminal sentencing and the need to remedy this total injustice.”8

It would seem that criminal law reform should be racing along at a breakneck pace, given these unusual alliances and the opportunities given the new Biden administration. News flash: it is not, either at the federal or state level.9 Here, I will try to describe the reasons for that languid pace and assess the impact of what President Lincoln called (in referring to military progress) “the slows.”10

Part I below will describe this lethargic pace of reform. It lies in stark contrast with the flashy dynamic that created the need for such reform: those swift surges in retributive impulses in which tough-on-crime measures pile one on top of the other. The harsh treatment for crack cocaine offenses, which ramped up quickly in the mid-1980s and has been very slowly undone for 30-some years, is the model for this tragic pattern. The attention to crack, however, masks a broad movement across criminal law in the same direction, spanning federal and state systems, and reflecting similar results. In addition to crack, I will take a look here at the bizarre and seemingly intractable placement of marijuana in Schedule I of the federal code and then turn to state examples of legislative lethargy in the face of clear injustice.

Part II, in turn, will look at three interconnected reasons for this case of “the slows.” Most obviously, it is a political problem enmeshed in the gears of our democracy. The political incentives of increasing penalties usually outweigh the political payoff for reform, though that may be changing. The consistent and powerful influence of prosecutors in developing policy is part of the problem, and these political questions are tangled up (as so often is true in the United States) with issues of race. Second, an uncoordinated and unfocused group of advocates (of which I am one) has, like Baptists in America,11 formed dozens of strands rather than one strong rope. Finally, there is the persistent lure of incrementalism, which presents small victories to be celebrated while leaving gaping canyons of injustice unbridged.

Finally, Part III will suggest a path to accelerate the process, by addressing each problem in turn. First, reformers must find a way to coordinate efforts rather than competing for resources and attention. I suggest the funding and formation of a meta-organization that can at least provide some focus and coordination to the dozens of disconnected advocacy groups searching for relevance. Politics is difficult, of course, but there are signs of hope emerging even now. Still, there needs to be a higher and more consistent profile for criminal justice reform, so that the rewards of supporting reform at least equal the political benefits of being “tough on crime.” At the same time, racial appeals need to be called out as such, and there must be an affirmative restructure of the policy apparatus to dilute the unique power of prosecutors to reify the status quo. Perhaps most importantly, reform proposals need to be marked by boldness, particularly in those narrow windows of time when change is most possible.

I. The Languid Pace of Reform

Despite consistent and principled criticism from across the political spectrum, incarceration rates in the United States have not responded in kind. Between 2007 and 2017, imprisonment went down, but only by 10%.12 (We are still sorting out the effects of the COVID pandemic on incarceration). Of that decline, only a fraction can be attributed to state or national policy and legislative changes at the state and federal level, since some of the decline is likely to have been caused by more reasonable charging and sentencing practices by local prosecutors and judges as they adjust to these same influences.

Crack cocaine is the exemplar for “the slows,” even as it stands alone as a focus of recent reforms in the federal system. Marijuana law has moved on a different trajectory; many states have legalized it while the federal system clings systemically to a 1980s mindset, as what many perceive as the least serious narcotic remains categorized in the most serious category among the federal narcotic schedules. Meanwhile, in the states, experiences have diverged even as they generally reflect the slow pace of change.

A. Crack

Even when there is a broad and deep consensus on the negative effects of a sentencing measure, reform moves glacially. Crack cocaine, of course, is the template for this dynamic. Federal crack sentences went through the roof beginning in 1986, driven by a mindless 100-to-1 ratio between powder and crack cocaine weight thresholds.13 The support for that change was strikingly bipartisan, as the Democratic-majority House of Representatives passed the bill by a vote of 378–16.14

The 1986 crack law was just one of several developments building on one another in the 1980s to lay the groundwork for retributivism and over- incarceration in the federal system.15 It is, in retrospect, shocking to see the brief period in which so much harm was done. In 1984 alone, Congress managed to create a sentencing commission to formulate mandatory guidelines, 16 re-instate the federal death penalty, 17 eliminate parole prospectively,18 and amend the bail laws by creating broad presumptions of detention in drug trafficking and other cases.19 Then, 1986 brought the mandatory minimums of the Anti-Drug Abuse Act,20 and 1987 saw the arrival of the new, and remarkably harsh, mandatory sentencing guidelines.21 Finally, Congress piled on even more, passing the Anti-Drug Abuse Act of 1988, which (among other provisions) applied the mandatory minimums in drug cases to co-conspirators.22

These federal retributive and prison-stuffing measures passed quickly and overwhelmingly. Many states rapidly followed suit, in what Frank Zimring called “copycat state legislation” resulting in skyrocketing rates of incarceration within both the federal system and in the states.23 The growth of incarceration came quickly and built on itself, on political opportunism, and on alarmist media accounts focused on the “crack epidemic” and other crime.24 The new regime landed with a terrifying sound for those who had ears to hear—but too few did.25

Even setting aside the racial dynamics for a moment,26 the crack-powder disparity never made any sense. Crack is made out of powder cocaine (by cooking it up with water and baking soda),27 usually by a street-level dealer or a similar low-level player.28 In other words, it is powder cocaine that is brought into the United States, distributed through the country, wholesaled within a city, and then distributed into neighborhoods. It is only at the lowest rungs of the ladder that crack even exists. Thus, the crack-powder disparity was prioritizing the incapacitation of those people who were least important to the whole, the least culpable, and the most easily replaced (and, as it turned out, the least white).29

Within a few years, warning bells began to sound. United States District Court Judge J. Lawrence Irving quit the bench in 1990, citing the harsh new drug laws.30 A Reagan appointee, Irving said he “just can’t do it anymore.”31 In 1992, Professor Daniel Freed of Yale, whose writings influenced the creation of sentencing changes of the mid-1980s,32 decried the “unvarnished cruelty” of mandatory minimum drug sentences.33 Recognizing the racial outcomes they had created, in 1995 the United States Sentencing Commission34 itself voted to entirely eliminate the ratio between crack and powder, but the move was thwarted by Congress and what the New York Times properly referred to as “a timid President Clinton.”35

By that point, in 1995, everyone knew or should have known how wrong crack sentences were. In preparation for its own vote on equalizing crack and powder ratios, the Sentencing Commission produced a staff report examining the assumptions that underlay the original legislation. Among other things, the report set out a central dysfunction that powered the whole mess, concluding that “[d]espite the unprecedented level of public attention focused on crack cocaine, a substantial gap continues to exist between the anecdotal experiences that often prompt a call for action and the empirical knowledge on which to base sound policy.”36 In other words, the legislation was based on stories, not data. The report also exploded the myth of racial neutrality, revealing that Blacks and Hispanics accounted for 95.4% of crack convictions, while over half of crack users were white.37

Some may debate whether or not there was clear racist intent at the time the 100-to-1 ratio was implemented.38 At any rate, by the time that unjustifiable racial disparities were thoroughly quantified, it is hard to imagine a reason other than bias for why the problem was not immediately corrected by those with the power to do so. That correction did not happen.

The Sentencing Commission, even after the failure of its equalization proposal in 1995, stayed on task in seeking a change that Congress would accept. In 1997, they tried again with the same conclusion, reiterating the 1995 report with a more modest reform proposal.39 In 2002, the Commission released another report on crack sentencing, with both more pointed factual conclusions and more modest policy proposals.40 This time, the Commission specifically found that the then-current penalties exaggerated the relative harmfulness of crack,41 that those penalties were too broad and usually were applied to lower-level offenders,42 that they were disproportional to those applied to other offenses,43 and that the ratio’s severity “mostly impacts minorities.”44 The 2002 report acknowledged that the data was in—and that the facts did not support the 100-to-1 ratio.45

Still, nothing happened. We knew for certain that the 100-to-1 ratio was racist. We knew it rested on disproven “facts,” such as the myth of crack- fueled “child predators.”46 We knew it did not meet the mandate of proportionality. And yet, nothing happened.

In 2007, the Sentencing Commission tried again to convince Congress through a lengthy report,47 this time in combination with a small reform of its own that survived challenge by the legislature. That modest change dialed down the offense level for crack offenses by two,48 a change that did allow for lower sentences under the guidelines while not deviating too drastically from the mandatory minimums that remained in the statutes. Finally, after two decades, there was a crack in the 100-to-1 ratio wall.

That crack widened in 2010, when Congress passed (and President Obama eagerly signed) the Fair Sentencing Act, which altered the weight thresholds for mandatory minimums applying to crack and powder to 18- to-1.49 This was a big change, but the good news was mitigated by two strange facts. First, instead of equalizing crack and powder sentences, an unusual new ratio was employed. The odd ratio of 18-to-1 was reportedly a compromise worked out between Senators Dick Durban and Jeff Sessions.50 The second unfortunate anomaly was that the reform was not made retroactive51—that is, it did not apply to those already sentenced, meaning that those already in prison would continue to suffer under a measure that had been rejected as too harsh.

The second anomaly—the failure to make this important change retroactive to those already sentenced—was not fixed until President Donald Trump signed the First Step Act in December of 2018.52 Thus, it took over eight years, six years of the Obama administration and two under Trump, to make this right. The other anomaly, the failure to equalize the sentencing of crack and powder cocaine, remains in both the statute and the sentencing guidelines as of July, 2021.

And so, finally, some measure of reform was accomplished in relation to crack after literally decades of everyone knowing that the status quo was wrong. But here is the kicker: crack is the success story of criminal justice reform (at least in the federal system)—it is the best that we have done. Outside of the changes relating to crack, there has been virtually no systemic reform at the federal level, and too little at the state level.

B. Marijuana as a Schedule I Narcotic

In 1970, Congress tried to create order in narcotics control by organizing problematic53 drugs into five progressively less harmful “schedules” that were defined by three key metrics:54 whether or not the substance has an accepted medical use, potential for abuse, and safety of use under medical supervision if there is an accepted medical use.55 Thus, drugs with a supposed “high potential for abuse,”56 with “no currently accepted medical use”57 and “a lack of accepted safety for use . . . under medical supervision”58 are categorized in Schedule I.59 Conversely, Schedule V includes drugs that have a “low potential for abuse,” relative to those in other schedules,60 a “currently accepted medical use,”61 and “limited physical dependence or psychological dependence” relative to other drugs.

As one might expect, Schedule I includes “hard drugs” such as mescaline and heroin.62 Schedule II, in turn, includes cocaine (which has an accepted medical use).63 Schedule III contains what are perceived to be less serious drugs like codeine and amphetamine.64

Inexplicably, in 1970 Congress put marijuana65 right in the middle of Schedule I,66 labeling it a threat equal to heroin and limiting its use to research purposes under strict regulation.67 Here was another instance of a mountainous error, contrary to all logic,68 that embedded itself within the law despite decades of efforts to supplant it.

From the start, there was push-back against the bizarre placement of marijuana in Schedule I. Contemporaneous with the development of the schedules, President Richard Nixon asked for a report on marijuana from the National Institute of Mental Health. The expert report he got hardly supported the equalization of heroin and marijuana; rather, it recommended that marijuana be decriminalized and was titled “Marijuana: Symbol of Misunderstanding.”69 Both Congress and President Richard Nixon ignored this logic and did nothing, setting a template for all of his successors to date.70

In 1972, an advocacy group petitioned for rescheduling of marijuana, which could be accomplished administratively by the Attorney General.71 The National Organization for the Reform of Marijuana Laws (NORML) asked that marijuana either be shifted to Schedule V or dropped from the listings altogether.72 That also went nowhere. Similar administrative reviews spurred by petitions in 1986 and 2002 met similar fates, despite growing evidence that undermined the rationale for keeping marijuana in Schedule I. 73

While the federal government sat on its hands, state governments began to act on their own. Leading the way, in 1996 California legalized marijuana for medical purposes through a ballot initiative and was soon followed by five other states (Alaska, Arizona, Nevada, Oregon, and Washington) in 1998.74 The way in which the people spoke in those states—declaring explicitly that marijuana did have medical uses—drove a stake through the heart of the stated rationale for placing marijuana in Schedule I. In the ensuing years, of course, the acceptance of medical marijuana reached the overwhelming majority of Americans. As of 2019, only four states (Idaho, Kansas, Nebraska, and South Dakota) barred all forms of marijuana and its active ingredient under state law,75 while eleven states and the District of Columbia had legalized marijuana for non-medical recreational use.76

The administration of Barack Obama strained to deal with this state- level shift in the law. While the Department of Justice declared in 2013 that it would enforce federal marijuana laws in conflict with state law only in certain conditions,77 it did nothing to move marijuana out of Schedule I.

The failure of the Obama administration to make this obvious move is especially perplexing. Keeping marijuana on the top schedule had broad impacts, not the least of which was that it hindered research into the effectiveness of the medical marijuana that was flowing through the state systems.78 Even with a President and Attorney General who held themselves out as progressives and had the power to change the scheduling without the involvement of Congress, nothing happened—the Controlled Substance Act and its nonsensical categorization of marijuana remained in place eight presidents after it was enacted.79

In what seems like a cruel jest, Obama-era Attorney General Eric Holder asserted just after he left that office that he supported moving marijuana out of Schedule I, saying, “You know, we treat marijuana in the same way that we treat heroin now, and that clearly is not appropriate. So, at a minimum, I think Congress needs to do that.”80 As Holder must have known, the law made re-scheduling his job, not Congress’s.81 As with crack sentencing, the scheduling of marijuana is a problem everyone knows about but no one wants to fix. C. State Initiatives

Even as the federal system struggled to right the most basic wrongs, similar movements were proceeding in the states. While some of the state reforms have been significant, they are limited in significant ways that reflect the difficulty of reversing the harsh-on-crime policy ratchet. In the end, state-wide measures may prove to be less significant than the national movement to elect progressive District and County Attorneys,82 a project that wisely does an end-run around the lethargy of legislatures in enacting reform by going straight to the broad discretion in the hands of prosecutors. The quick and significant success of this initiative is to be applauded, but it also establishes a stark contrast with the slow pace of policy change at the state and national level. It is fair to say that these local actions are at least in part a product of our broader failures and the frustration this produces.

A look at three states offers a glimpse into the variety of changes. In terms of sheer numbers, reforms in California have probably been most significant, while Florida has done little, even though the need for reform has been made evident. Alaska, meanwhile, passed extensive reforms but quickly backtracked in the face of a perceived rise in crime.

  1. California

California has been a relative success story, as a series of reform measures (combined with other factors) has reduced incarceration from about 171,000 in 200683 to around 115,000 people locked up at the start of 2019.84 The changes in California were propelled by a number of forces, with finances being a primary incentive. At its peak in 2006, a system designed to house about 85,000 people was stuffed with about double that number,85 meaning that the state had to either spend a lot of money building prisons or reduce the prison population. When he took office in 2004, Governor Arnold Schwarzenegger immediately faced a crisis, forcing him to release prisoners even as he opened a new prison.86

A second driving force came later in that decade, in the form of a federal mandate. In 2009, a three-judge panel, later affirmed by the Supreme Court,87 decried California’s prison overcrowding and required a reduction of at least 40,000 prisoners.88 California had no choice but to act.

Beyond Schwarzenegger’s reflexive reactions, a series of reforms have made a lasting difference. These have included a 2011 law that shifted many inmates from state prisons to county jails89 (thus putting a financial burden on the political unit—the county—that makes charging decisions)90 and the implementation of Proposition 47 in 2014, which reduced some property and drug crimes from felonies to misdemeanors.91

The reforms have not been without problems. For example, the shift of prisoners to county jails has exacerbated problems in the jails,92 and coincided with a 46% rise in killings within the jails by inmates.93 And predictably, there has been a backlash to the reforms coalescing around a proposition already approved for the 2020 election,94 classifying more crimes as “violent,” and limiting early release on parole.95

It is telling that despite consistent effort, California has only gotten close to meeting the 2009 court mandate in large part by shifting prisoners—and their problems—to local jails. Even within success stories, the difficulty of speedy reform leaves its marks in freedom and blood.

  1. Florida

Where California has implemented some measure of reform, efforts in Florida have largely failed, with the result that Florida now has a prison population that is close to that of California despite having about half the number of residents.96 Florida’s state prisons currently hold about 99,000 people,97 which represents (in stark contrast to California) a sharp increase from 2006.98 While Florida faces some of the same challenges of cost that California did, it has implemented few significant reforms.99

A political fight in 2019 offers insight into Florida’s failure. In April of 2019, Florida Senate Bill 642 was passed by the full Senate Appropriations Committee.100 The bill had bipartisan support and promised a raft of reforms: raising the felony theft threshold (from $300 to $750), allowing good time release in non-violent cases after 65% of a sentence is served instead of 85%, and permitting judicial review of juvenile transfers to adult court.101 Taken together, these changes (particularly the early-release provision) could have made a significant dent in Florida’s prison population.

Unfortunately, though, a familiar political dynamic kicked in. Two law enforcement groups, the Florida Sheriffs Association and the Florida Prosecuting Attorneys Association, pushed back.102 Their claim was that the changes would be unfair to victims and that the reforms would increase crime at a time when crime was declining. As the Sheriffs Association put it, “Allowing criminals to serve only a fraction of their sentence sends the clear message that criminals are more important than victims and that victims’ rights do not matter. A major reason we enjoy a low crime rate today is because criminals are serving the time deserved and not getting a ‘get out of jail free’ card.”103

The law enforcement lobbying worked. While the legislature did pass a crime bill that was signed by the governor,104 it was stripped of the major reform pieces.105 Most significantly, the provisions allowing for early release and tamping down mandatory minimums were gone.106 With them went the hope for a significant decrease in Florida’s prison population.107

  1. Alaska

While California embraced significant reforms and Florida rejected them, Alaska made changes rooted in data and social science and then, in the face of backlash, revoked them. In Alaska, of course, we are dealing with much smaller numbers than California or Florida. Even with a moderate increase since 2006,108 the state prison population there is about 4,300,109 and Alaska is slightly below the national average for incarceration rates.110

Even with those relatively small numbers, a concern for costs and fairness drove bipartisan support for Senate Bill 91 (SB 91), which was signed into law in July of 2016.111 Like other proposed reforms, SB 91 was styled as a “justice reinvestment act,” which intended to use data to target lesser imprisonment for some offenders and then use the savings from averted prison costs to reduce recidivism.112 The resulting legislation relied on studies from groups including the Pew Research Center and created four broad changes in Alaska’s criminal practice: (1) pretrial practices were changed to incorporate data-driven outcomes; (2) sentencing practices were altered to focus long sentences away from low-level nonviolent offenders; (3) re-entry, parole, and probation practices were reformed to enhance the chances of success for returning citizens; and (4) oversight and accountability features were added to the system as a whole.113

Almost immediately, the new laws were tied to a reported uptick in crime. At a forum in Anchorage, a murder victim’s mother said that the new law made things “worse,” and a former prosecutor in the legislature promised to pursue changes.114

In response to these outcries, the governor called for a special session to consider amendments, and just months after SB 91 was implemented it was amended by a new law, SB 54.115 That law addressed a number of particular concerns by allowing jail time for non-aggravated Class C felonies, raising allowable sentences for theft, enhancing the ability to charge sex traffickers, re-criminalizing the violation of conditions of release, and mandating periods of probation for sex offenders.116

There were signs that the new law was working. By early 2019, for example, a report showed that more people were successfully completing probation and parole.117 Significantly, it also seemed that crime overall was going down in the urbanized Anchorage area.118 Nonetheless, concerns with a surging opioid crisis and increase in some types of crime fueled a cry for repeal. Not surprisingly, figures from within law enforcement and corrections were prominent in the repeal movement. Former Correctional Superintendent Dan Carothers, for example, wrote that because of the reforms there had been a striking increase in Juneau’s rate of “vehicle theft, burglarized homes, property damage, theft and assault. These crimes have increased tremendously as a result of Senate Bill 91.”119 More significantly, Attorney General Jahna Lindemuth claimed that by the autumn of 2017, the new bill had resulted in over 7,000 crimes going unprosecuted.120

In 2018, Mike Dunleavy ran for governor and promised a full repeal of SB 91’s reforms.121 On July 8, 2019, the newly-elected Governor Dunleavy first announced a “war on criminals”122 and then made good on his promise to get rid of the reforms, signing the repeal of SB 91123 in a ceremony held in an airplane hangar.124 At the time of the repeal, no plan was in place to account for the costs of imprisoning more people due to the repeal. Despite showing signs of success, criminal law reform in Alaska was gone almost before it arrived.

II. Causes: Why We Have “The Slows”

Why are we so slow to correct clear injustices?

There certainly is no single cause of our languid reforms, and no proven way to measure and quantify those causes. Some inputs, though, are likely involved, and I discuss three of them here. First, the nature of the contemporary two-party political system in the United States probably has something to do with it. Too often, politicians are rewarded for playing to fear, and there is no easier go-to for fearmongering than crime. Within that context, race cannot be ignored as a historical and continuing tool of fear- mongers. The stay-the-course influence of prosecutors also plays a primary role in both state and federal political systems, working to stymie reforms that would take away their power. Second, even as the group of advocates for criminal justice has grown, they have become fractured and atomized, limiting their effectiveness. Finally, there is a certain allure to an incrementalism that allows us to claim victories despite the slow pace of change. Some might argue that it is the most likely path to success in the end, and that incremental changes necessarily take time to implement and even more time before the benefits are realized. However, incrementalism masks its price and exaggerates success by frequently creating cause for celebration, and the banquets and awards obscure the darker reality of a largely unchanged system.

A. Politics and the “One-Way Ratchet”

1. The Nature of Politics in Our Time

In the United States, policy is filtered through politics, and that aspect of democracy has proven to be a brake on reform. It is not the basic mechanizations of democracy that are at fault, of course—the ability of people to choose their representatives can serve to create or solve problems equally—but a distorted dialogue that is fueled by fear and at times has been employed by members of both parties. A corporate mainstream news media, click-bait social media, and fearmongering politicians have turned the mechanics of democracy against the better angels of our policy debates, all of which is exacerbated by the absence from the debate of those most impacted by these policy decisions: people in prison.

i. The Political Effects of Incarceration

“You know, Mark,” one skeptic of my work once told me, “the crack- dealer demographic is a very small voting bloc.” It was a bad joke, but it hits at a core truth: those most directly affected by over-incarceration are the people in our society least able to affect policy through democratic means because those in prison are almost always denied the ability to vote.125 In fact, there is no other policy area where American citizens targeted by a government policy are so directly prohibited from addressing that policy through the ballot box. This makes criminal justice unique.126 In the debate over social security, for example, activists can marshal the voting power of millions of social security recipients.127 No such ability exists for those who argue against over-sentencing.128

ii. The Media

Two fundamental and immutable truths drive media coverage—both in the mainstream and in social media—towards exaggerating the effects of crime. First, news media covers what does happen (that is, crime occurring) rather than what does not happen (crime not occurring). Second, all media sources are fundamentally outlets for storytelling, and that favors anecdotes over data.

On the first dynamic, it is simply within the nature of the press that they will report on events rather than non-events. ‘Crack epidemic strikes’ or ‘opioid crisis consumes community’ is a headline, while ‘no drug crisis, really,’ will not be as interesting. A good example of this involves methamphetamine. For years, informal meth labs plagued much of America, and the problem was widely reported, often with a focus on the very real dangers of the labs themselves.129 The labs were full of toxic chemicals, which endangered current and future occupants.130 The labs often exploded.131 And the human cost of obtaining materials (often by theft) and running the labs—even apart from the meth use itself—was a big problem, particularly in rural areas. One report from 2002 described a teenage boy who burned down his grandmother’s house, two men who climbed over a razor-wire fence into a rail yard to steal a tanker car of ammonia gas, and a father who walked away from his small children, leaving them crawling around in a house full of acidic chemicals strong enough to burn through the floor joists.132

But then something worked. Around 2010, many states started restricting access to pseudoephedrine, a key ingredient in home-made methamphetamine, following up on a federal directive in 2006 that required limits on over-the-counter pseudoephedrine sales. For example, Mississippi began requiring a prescription for the drug, and July through February meth-lab seizures dropped from 607 to 203 in one year.133 Eventually, market forces led cheap imported meth to almost entirely eclipse the home labs, meaning that while the scourge of meth use was still with us, the myriad and oft-trumpeted problems of meth-making in local communities were largely solved.134 You probably did not know that—and the reason is that the administrative solution to mom-and-pop meth labs was not widely reported as it happened. Meth labs blowing up are news. Solving the problem through an administrative measure that required no incarceration is not.

A second intrinsic aspect of journalism and social media also skews against reform. The storytelling nature of the media is fundamental to its success, and the seductive nature of narrative has drawn journalism to both good and dangerous places.135 Broad data—say, the rate of violent crime over time—may be more relevant to policy and perception, but the story of a murder or a bloody weekend in Chicago is going to draw in more readers. That means that most of our stories about crime are going to be anecdotes: the story of a single incident, rather than a reflection on broader trends.

There are problems within the way those anecdotes are told, as well, since the sensationalist aspects are simply more interesting.136 Rachel Barkow describes this dynamic well:

Rarely does a news story explore the costs and benefits of criminal justice policies, the underlying demographic statistics of offenders or victims, or the individual background of those who broke the law. Instead, the stories tend to focus on the emotional horror of specific violent crimes that may not represent overall trends.137

While some larger institutional media sources have begun using graphics that allow for a much broader and better use of data in stories about crime,138 local outlets do not often have the same capabilities, leaving crime to be defined in the minds of the public one incident at a time. Because public perceptions of crime are thus largely based on anecdotes, public beliefs often do not align with broader truths and data—what sinks in are the compelling images and stories delivered one-by-one by the media.

As a result, Americans often are not sure what is true, and one of the most striking disconnects between public belief and reality involves understanding crime rates. The Pew Research Center found that the majority of Americans surveyed believed that crime in the United States got worse between 2008 and 2016: 57% thought it had gotten worse, while only 15% thought it had gotten better.139 Among those who supported Trump in the 2016 election, the results were even more stark, as 78% thought crime was worse and only 5% thought it was better.140 Truth ran the other way, of course; in that same time period violent crime had fallen 19% and property crime dropped 23%, continuing a downward trend that began in the mid- 1990s.

Surprisingly, the impact of media stories and images can be even more important in forming negative impressions than actual lived experiences. As Rachel Barkow has pointed out, there is no statistically significant relationship between punitive beliefs and having been a victim of crime, but there is a significant relationship between those beliefs and watching a lot of crime stories on television.141 In other words, real-life experiences do not strongly affect the way we feel about criminal justice, but the media’s interpretation of what is going on—often in communities other than our own—does affect our policy outlooks.

One example of this dynamic was a primary driver of the excessive crack sentences that federal law demanded for far too long. Like any story of narcotics use, crack was used by addicts and non-addicts alike, and not everyone who used crack ended up a tragedy.142 Moreover, as even the United States Sentencing Commission came to realize, crack’s active ingredient was simply powder cocaine.143 Yet, media depictions of crack used charged language and racially-loaded images to describe crack dealers: “thugs,”144 “crack whores,”145 and “super-predators.”146 The result was predictable: people concluded that the evil of crack supported the most draconian of sentences, slowing rational reform.

iii. The Allure of Fear-Mongering and Simplicity in Politics

The alarmist tendencies of the media are only magnified when politicians like Donald Trump cherry-pick crime stories to create fear in the hopes of electoral success. For example, during the 2016 presidential campaign Donald Trump emphasized shootings in Chicago as that city suffered a temporary and isolated spike in that type of crime.147 Although Trump asserted that he wanted to “help” Chicago, his audience clearly was not the residents of that city; rather, he was appealing to the suburban and rural conservatives who would define Chicago as a kind of pathological cesspool created by liberals.148

Certainly, Trump did not create the tactic of fear-mongering over crime (though his ability to do so at a time of record-low crime is relatively unique). President George H.W. Bush was particularly fond of this technique, as demonstrated by a bizarre display in 1989. Planning for a televised speech, Bush had federal agents manufacture a crack sale across the street from the White House, and then waved the resulting baggie of crack at the cameras as he warned of the dire portents of the crack “epidemic.”149

Hand-in-hand with the effectiveness of fear-mongering goes another political truth: that voters are perceived as responding to simple messages (i.e., “let’s get tough on crime with long sentences”) rather than complicated ones, and reform platforms require quite a bit of explaining. William Stuntz described this dynamic: “For legislators, pleasing voters might mean producing rules the voters want. But this requires that the rules be simple and understandable, the sort of thing politicians can use in campaign speeches and advertisements.”150 And that sort of thing, of course, is tough- on-crime measures like mandatory minimums and long sentences.151 It is easy to see how this simplicity versus complexity dynamic played out in the Alaska reforms: complicated reforms rooted in academic studies and data lost out to bullet points about crime and criminals.152

As with the media, politicians use episodes of crime to promote success by their own metrics: instead of ratings, they worry about elections.153 The incentives of their fields are sadly directive against reform.

2. Race and Racism

The pronouncements of politicians described in the preceding section often contain at least an implicit racial appeal: one must assume that it was not lost on Donald Trump that the perpetrators of the gun violence in Chicago would be perceived by his followers as young black males. And just as it is racism that allows too many elected officials to reflexively ratchet up incarceration and keep it there,154 the same underlying impulse—that it is the threat of black men that requires mass incarceration—serves as a brake on reversing the trend.

What we do know is that black Americans are no more likely to use or sell illegal drugs than whites155 but are disproportionately arrested and convicted for narcotics crimes.156 Beyond the simple moral wrong in that kind of differential racial outcome, the fact that drug defendants are so often black also allows racial appeals to work—that is, the prevalence of blacks among the selected group of named and shamed “criminals” reifies the skewed racial views of whites, who conclude incorrectly that black people are more prone to crime.

Moreover, when white citizens are led to perceive that drug crimes are largely committed by non-whites, they likely conclude that the human costs (imprisonment and other punishments) of the War on Drugs will be borne by people unlike them, and that this is rational. To put it more bluntly, the idea that narcotics are a “black” problem inures other citizens to the broader interests of justice and the need for reform, since the pain exacted by the current system will be extracted from an “other.”

3. The Persistent Power of Prosecutors

A few years ago, Rachel Barkow and I raised a hypothetical: imagine that a newly-elected president makes a stunning announcement on the first day of her term—that she is turning criminal law matters over to the Federal Defenders’ Office based on the extensive knowledge that the Defenders have in the field.157 Her primary advisor on criminal justice issues would be the Chief Defender in Washington D.C., and experts from the Defenders’ offices would speak for the administration before the Sentencing Commission and Congress. Pending legislation or guideline amendments would be supported only if the Defenders were on board, and they would also be put in charge of federal prisons, forensic labs, and the clemency process.158

People would think that the President had gone bonkers. After all, the Defenders have an inherent conflict in all of those duties, since their institutional role is to represent one side of the criminal law equation. There would be no way to root out the bias inherent in that job.

And yet, our reality is a mirror image of that hypothetical: all of those roles (and more) are fulfilled solely by the Department of Justice in our current system.159 In both the state and federal systems, prosecutors have a unique and outsized role in determining policy, and that often means that they are the ones who stymie reforms in order to maintain their own power—which is institutionalized within the status quo—and to ensure that the tools they use to avoid the risks and effort of trial are not eroded.

i. Prosecutors in the Federal System

Career prosecutors in the Department of Justice (DOJ) have traditionally had a functional veto on reforms. Even in an administration that was devoted to addressing endemic problems within criminal justice, this has been true. Of course, there only has been one administration in recent memory that has even expressed such an interest—that of Barack Obama.160

On the White House website, the Obama administration laid out a compelling case for reform, asserting that “meaningful sentencing reform, steps to reduce repeat offenders, and support for law enforcement are crucial to improving public safety, reducing runaway incarceration costs, and making our criminal justice system more fair.”161 Obama’s commitment seemed to be more than symbolic. When he visited those incarcerated in an Oklahoma federal prison, he seemed genuinely chastened by what he saw and reflected “there but for the grace of God.”162 He took a group of clemency recipients to lunch at Busboys and Poets,163 a Washington D.C. restaurant, which presents itself as a hub for social change.164 He even crafted a pro-reform law review article for the Harvard Law Review at the end of his second term.165

However, Obama was largely steered away from significant reform by the DOJ. He created a clemency initiative, but left implementation in the hands of the DOJ, which stymied the potential of the project.166 He vociferously supported the idea of sentencing reform, but advocates from the DOJ consistently opposed or tamped down reform proposals before Congress or the Sentencing Commission.167 The law allowed for a broad use of compassionate release for elderly and infirm prisoners, but the Bureau of Prisons—a division of the DOJ—almost never used it.168 Even when the will for reform is strong in the executive, there is a building full of prosecutors ready and able to mute that desire.

ii. Prosecutors in State Systems

Though Attorneys General can have some sway on reform issues, states lack a centralized prosecution hub like the Department of Justice; instead, prosecution is taken up in most states by District or County Attorneys who run for office.169 These local prosecutors, though, often oppose reform both when they run for office and when they interact with the legislature.170

Local prosecutors have particular reasons for opposing reform. One is to be consistent and reaffirm the “tough-on-crime” personas that they too often rely on to be elected and re-elected.171 Another is to maintain and extend the power that they have, and reform often would limit their ability to charge people and seek long sentences—that is, reform frequently comes in the form of restraints on the discretion of prosecutors.172

Notably, this critique of state prosecutors as a force against reform must account for the growing number of elected prosecutors who came to office expressly as reformers.173 It is no longer fair to assume that an elected prosecutor is an opponent of reform. The progressive prosecutor movement is new enough that it is too early to measure its effect beyond new policies within each new prosecutor’s own jurisdiction (though certainly those internal reforms are important), but over time the impact may be significant.

It would be a mistake, too, to only consider the role of elected prosecutors—that is, the heads of the offices—in resisting reform. After surveying a broad array of line prosecutors (the employees who work for the elected prosecutor and take on individual cases), Ronald Wright and Kay Levine cautioned that these line attorneys—particularly those who view prosecution as the only “correct” vehicle to address offenses—might oppose calls for heightened scrutiny and reform.174 Because they are ultimately the ones who implement policy, these line prosecutors also have the ability to subvert reform propagated at a higher level. Some progressive prosecutors seem to expressly acknowledge this dynamic. For example, Sarah Fair George, the Chittenden County Attorney in Vermont, directed her line prosecutors to visit a prison, citing their “nonchalant” attitude about sending people there.175 George’s move reflects a reality for progressive prosecutors: at least some of their advocacy for reform needs to be directed to the people working for them.

B. The Challenges of Advocacy

1. The Fragmented World of Advocates

In other realms of advocacy, people know who the leaders are. In support of gun rights, it is (for now)176 the National Rifle Association (NRA).177 In the field of protection of older Americans, it is the American Association of Retired Persons (now known just as AARP).178 Trade groups have combined lobbying groups like the Auto Alliance.179 Even within the realm of criminal law (as already discussed here) the DOJ acts as an advocate.180 The benefits of clear leadership in a field of advocacy are plain: such behemoths can leverage a wealth of experience, established relationships, and money to either pursue or retard change.

Within the area of criminal justice reform, there is no such behemoth. Instead, there is a broad diversity of non-profits, which compete for talent, financial support, pro bono help from law firms, and access to power.181 As a result, it is rare that advocates are well-aligned in their goals and methods, and there is significant overlap of effort by unaffiliated groups. In the face of effective, unified opposition by prosecutors, it should not be surprising that reform groups struggle to get traction.

Certainly, there are long-established groups in the field of criminal justice reform. The issue is that there are so many of them, each working on their own. Families Against Mandatory Minimums,182 the National Association of Criminal Defense Lawyers, 183 the Brennan Center, 184 the ACLU Drug Law Reform Project,185 the NAACP,186 CAN-DO Clemency,187 and others have been doing good and important work for decades. Recently they have been joined by newer but well-funded and influential groups including Dream Corps. Justice,188 Right on Crime,189 and Freedom Partners. 190

Beneath the larger institutional groups (at least in size), one finds a handful of corporate officers,191 a larger group of freelancing academics,192 and a multitude of tiny-to-small advocacy groups that usually serve as the alter-ego for a single advocate or a small group of advocates.193 This last group has largely been created by two projects specifically designed to train and spin off advocates. One such project is the Soros Justice Fellows, a project of the Open Society Foundations.194 Another is the “Leading with Conviction” program created by Just Leadership USA, which trains formerly incarcerated people to become criminal justice advocates.195

In a rare attempt to at least connect these disparate bodies, longtime advocate Nkechi Taifa created and continues to lead the Justice Roundtable, a gathering for over 100 of these disparate groups, allowing representatives to compare notes and keep up with recent developments.196

It matters, too, that these groups are in an existential competition with one another for limited funding sources. While some level of cooperation is common among these advocates,197 broad coordination of efforts is more rare, and the duplication of projects is inevitable.

Leading funders have guided the emergence of criminal law advocacy as a field with hundreds of leaders but perhaps not as many followers. The allure of leadership has only been enhanced as celebrities such as Kim Kardashian have joined the fight,198 creating an illusion of glamour and fame around the task of seeking reform.199 That illusion masks a reality well- known to veteran reformers: that the work is mostly done in unpaid obscurity, with the sting of defeat a much more common feeling than any kind of glory.

2. The Problem of Crime Control

A continuing challenge for this loose but large band of advocates is to remain sensitive to the voices and interests of crime victims and the interests of crime control. This is not because crime victims are necessarily the enemies of reform—in fact, a significant number of crime victims support reforms, even those that would shorten sentences,200 and some crime victims have taken a leadership role in reform efforts.201

The larger challenge is that unless crime control and victims are taken seriously, allegations that reformers value incarcerated people over crime victims and public safety will hit home. Certainly, many groups have been conscientious about emphasizing the legitimate ability to reduce incarceration and crime at the same time.202

If advocates fail to take into account crime control and victims, their appeals will be particularly vulnerable in the face of an uptick in the crime rate.

C. The Attractiveness of Incrementalism

Advocates for reform face a conundrum. They can seek broad systemic changes, which are a low-percentage shot but pay off big if they succeed, or they can focus their efforts on smaller, incremental changes that offer a better chance for victories along the way. A problem with incrementalism, of course, is that inevitably some injustices remain on the table for years or decades even as things get nominally better. For example, consider the incremental approach to the reform of crack laws:203 first came court rulings that allowed for some discretion by judges to ignore the harsh guidelines.204 Next came the Fair Sentencing Act of 2010, which reduced the disparity in sentencing between crack and powder cocaine but did not eliminate it or make the changes in the law retroactive.205 Then, nearly ten years later, the First Step Act finally made those changes retroactive, but did not close the disparity.206 The cost of this incremental approach to fixing an obvious problem was years of unnecessary incarceration for thousands of people. But, of course, it also allowed for the release of thousands of people from prison,207 each with their own story of redemption.208 As Families Against Mandatory Minimums founder Julie Stewart put it in describing her group’s support of the Fair Sentencing Act, “Since 1995, when Congress killed the reform of the crack sentencing guidelines, nearly 75,000 people have received federal crack cocaine sentences. We will not allow another 75,000 to be sentenced at the current unjustifiable levels . . . I won’t let the perfect be the enemy of the good.”209

In discussing a pragmatic approach to change in criminal justice, Georgetown Professor Shon Hopwood described the best of the kind of incrementalism that finally brought some level of reform to the crack laws and sentencing guidelines:

It moves gradually. It trades in compromise. It demands less while crusaders demand more. Still, it has its place in progressive reform in America. If it starts with the feasible, it does so in the hope that the ideal may someday be realized, at least in some measure. If it is modest, it does so with the knowledge that by aiming lower it increases the chances of hitting its target. Pragmatism is not always a panacea but, then again, neither is it a path to nowhere.210

One advantage of incrementalism is that it creates victories, however small. That provides the opportunity for non-profit advocacy groups to take credit and celebrate each advance,211 something that is crucial to fund- raising—after all, there is much more appeal to donors when it is clear that progress is being made. Though hidden, this mechanism is critical to the survival of many advocacy groups. Unfortunately, this creates a tension between ambition for the cause and ambition for the financial success of an individual advocacy group. The financial incentive towards small victories pulls away from the desire for big ones—a tension that is only magnified by the competition between the atomized groups in the field.

There is another factor that promotes a limited ambition when it comes to the reduction of America’s prison population: the distinction between violent and non-violent offenders.212 It is much more politically palatable to seek reduced sentences for non-violent offenders,213 but to achieve ambitious goals such as cutting the prison population in half we would have to reach into the pool of those convicted of violent offenses to realize success.214

Because of the nature of federal jurisdiction, relatively few federal prisoners are there for violent offenses.215 The federal system, though, is only a small (but significant) fraction of the incarceration system in the United States.216 In the state systems, where most of the action is, 55% of those locked up are there on charges of violent crime.217 That means that if we are to reach the commonly-proposed goal of cutting incarceration by 50%,218 we are going to have to consider cutting sentences for those who have committed violent crimes. That does not seem to be something that even progressive Democrats have much of a taste for right now,219 and even the editorial board of the relatively liberal Washington Post opposed a D.C. proposal to lower sentences for some young violent offenders.220

Incrementalism is, right now, the only model of achieved success that we have in the field of criminal law reform. It is not a surprise that it is embraced by advocates and policy-makers.221 However, incrementalism has played a large role in the slowness of change as politicians are offered a convenient stopping point for reform. There are discrete costs to that choice, measured in the human lives that suffer as justice is delayed.

III. Accelerating the Process

If over-sentencing in the United States is wrong (and it is), then there is an imperative to fix that grave mistake immediately. The cost of not doing so is nothing less than life and freedom, two of the things that Americans hold most dear. Incremental successes do impact lives, but they also leave behind too many for it to be a principled process.

First, we must do a better job as advocates. We should sometimes be willing to be followers and seek out a unifying message. This will require a new role for one or more of the big funders in the area: turning away from creating dozens of new organizations, and turning towards coordinating and growing the ones that we have. In so doing, we need to strengthen our message by including plans to keep crime low and respect the victims of crime.

Second, our agenda needs to confront the political barriers that have slowed reform by creating a higher profile for the issue, calling out racist appeals, and by seeking to dilute the power of prosecutors in the policy.

Finally, we must be bold in what we ask for, particularly in those rare times that the stars align and striking change is politically possible. Reducing incarceration is a laudable goal, but achieving real long-term change will require not only changing sentencing laws, but the structure of our policy process and the way that we define crimes. It is a lot to take on, but it is also right and good.

A. Becoming More Effective Advocates 1. Unity and Purpose

The criminal justice movement doesn’t lack leaders so much as it lacks followers. Leaders—that is, those who have started an organization, set an agenda, and need to raise money—are already there in abundance.222 The field does not need another organization with another leader and another set of similar goals. Instead, existing advocates and organizations need to consolidate, coordinate, and cooperate. Emerging advocates need to be encouraged to join and support existing groups rather than starting their own competing project.

One way to move towards this goal would involve creating a meta- organization that could direct resources, talent, and connections to existing organizations and help to coordinate their activities. It is unrealistic (and possibly wrongheaded) to think that such a meta-organization would or should control or usurp the independence of existing groups, but a step towards some kind of coordination would be welcome.

Fortunately, two men have the ability to do this: Charles Koch223 and George Soros. Despite very different political philosophies, Koch224 and Soros225 have both been very active in funding and promoting criminal justice reform, and have had some funding or training role in the establishment and success of many of the advocacy groups in the field.226 And guess what? Koch and Soros have recently begun working together in a different political realm, opposing military interventions.227

The pitch to Koch and Soros is simple: Fund a standing organization to lead this fight. Then funnel money to individual groups through that standing organization and begin to coordinate goals and activities. It will free those groups from constant fund-raising and competition with one another and allow for efficiency and effectiveness at a national level.228 Over time, too, specialization will evolve among the groups both in the goals they address and the constituents they serve. The governing board of the meta- organization can have representatives from these constituent organizations, and the larger body can create active roles for academics and individuals who are deeply invested in this fight including (importantly) those who have been incarcerated themselves.

A thousand bees can be more dangerous than one bear, but only if those bees have coordination and focus. The goal of criminal justice reform is worthy enough and the advocates tenacious enough to become a swarm attacking injustice with common purpose and direction.

2. Taking Crime and Harm Seriously

To accelerate reform, it will be necessary to take the costs of crime seriously. The political pushback against reform, at its best and most valuable, comes from those who argue in the interests of crime victims and those who may be victimized. Their concerns for public safety must be taken seriously. To do that, we must offer something more than just lower sentences, but other ways to control crime, even (and perhaps especially) when crime rates are low. This can and should include proven plans to lower recidivism, including the promotion of education within prisons. It also can and should address root causes of crime, including poverty, as well. But beyond those important points, it must either assign a different role to law enforcement or argue for a reduced role for the police.

For example, in the narcotics field, there are options for addressing drug use other than broad legalization and a war on drugs, the two poles that are sometimes presented as our only options. One would be to attack the cash flow of the illegal narcotics trade rather than the labor of that industry, by forfeiting cash flow as it heads back to the source point of the trafficking.229 Such a tactic would make the business fail, driving up prices of illegal narcotics as supply shrank (at least temporarily).230

Listening to crime victims is important but challenging.231 The striking overlap between crime victims and offenders—they are often simply the same person at different times232—complicates the simple narrative that victims want long sentences. Advocates are wise to engage with crime victims in the community233 rather than strident advocacy groups that focus on pursuing retribution. Listening to victims often means seeking them out.

B. Confronting Politics

1. A Higher Profile

Sadly, criminal justice is most often in the public eye when crime rates are high. In 1982, for example, Richard Neely credibly claimed in The Atlantic that “[t]hrough at least the past decade, no public problem has worried Americans more persistently than crime. When people are asked in opinion surveys to list the problems that concern them most, the threat of crime typically comes at or near the top of the list.”234 With the threat of crime down—way down—since that time,235 the very issue of criminal justice also dropped far down the list of issues that the public cares about. In 2021, Gallup found that only 2% of Americans identified crime as “the most important problem facing the nation today.”236

Clearly, we care most about things we perceive to be threatening our own interests.237 When crime is not prevalent, it drops from the public discourse because it does not relate directly to our lives. So, predictably, criminal justice policy is rarely, if ever, mentioned in televised debates leading up to elections.238

The cost of this is significant. If candidates do not have to discuss criminal law when seeking election, it is unlikely they will pay it much attention once in office—after all, it was never on the agenda. Moreover, by failing to insist that the topic be addressed, we forfeit the ability to know candidates’ positions on crucial issues. For example, clemency—a power employed entirely within the president’s discretion239 —usually only gets into the news when a president uses the pardon power in favor of someone terrible, such as Marc Rich240 or Sheriff Joe Arpaio.241 Yet, no president in memory has been asked how he would use the pardon power prior to taking office. That means that there was no statement of principle, no promise of responsibility, before that mighty tool came into the president’s grasp. That failure is on us, because collectively we have failed to ask about this policy issue when we have the opportunity.

To remedy this, advocates must demand that candidates stake out positions on important criminal justice issues, lobby media outlets to question those candidates about criminal law, and press our own questions when we have the chance. It is crucial that advocates take their messages to those who will have the power to enact change at the time they are most likely to listen—when they are campaigning. Yes, that may mean going to Iowa,242 but to avoid this kind of engagement is to court irrelevance.

2. Naming and Shaming Racist Appeals

In 1988, George H.W. Bush was elected president over Democrat Michael Dukakis either because of or despite a racist appeal that became a legend. A group affiliated with his campaign, the National Security Political Action Committee, created an ad titled “Weekend Pass” that featured Willie Horton, an inmate who received a weekend furlough while Dukakis was governor of Massachusetts and used that opportunity to commit rape.243 Though the Bush campaign did not produce the ad itself, Bush campaign chairman Lee Atwater had said that “if we can make Willie Horton a household name, we will win the election.”244 The advertisement itself depicts a mug shot of Horton, a black man, as it describes the crimes he committed while on furlough.245

The Willie Horton ad is viewed as a template for “dog-whistle” racist appeals that don’t explicitly mention race, but which set out an enthymeme sending a clear message to followers with racist and racialized ideas.246 This technique allowed Bush to deny the racial nature of the appeal while plainly creating the desired effect in the population.247 The dog-whistle approach isn’t relegated to history.248 In the 2016 presidential election, it was employed to great effect by President Trump, and some assert that he now has moved beyond such shaded messaging into straight-up racism.

249

President Trump’s more controversial comments have not always been directed at criminal law policies, though sometimes they have: in announcing that he would run for president, Trump famously said that, “When Mexico sends its people, they’re not sending their best . . . They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.”250 And with a raft of progressive opponents seeking to oppose him, it is easy to imagine the temptation is great to go back to dog-whistle techniques, or worse. When that happens (or if a Democratic candidate does the same), it must be clearly labeled as a racist appeal. Advocates, journalists, all of us have the responsibility of calling out such dangerous, divisive, and immoral appeals.

3. Diluting Prosecutor’s Influence on Policy

Few of us are good at admitting we were wrong.251 Prosecutors are particularly bad at it;252 criminal justice reforms almost always contain an implied but inherent criticism of what prosecutors have done. Too often prosecutors react to reform efforts by staunchly defending the power they have accumulated.253 That defensiveness should not surprise us. After all, the sentences we seek to alter are the ones that prosecutors “won” as they stood ten feet away from the person being sentenced. The emotional investment in that exercise is huge; after all, the cost of having been wrong is the knowledge that one has unfairly imprisoned (or, in death penalty states, killed) a fellow citizen.

The influence of prosecutors operates differently in the federal and state systems. In the federal system, the Department of Justice serves as literally the only formal advisors to the President and Congress on criminal justice matters.

254 In the states, the influence of prosecutors runs with the deference they are shown by legislators on policy matters.255

i. The Department of Justice

Maintaining the top officials of the nation’s prosecutorial office as the only advisors to the president on criminal justice reform is ludicrous—the conflict is obvious.256 Two fixes to the problem are easily available, and can be created by the president through executive order. The first would be to create a single advisor position, similar to the role that the United States Trade Representative plays as an advisor outside of the Department of Commerce,257 or the National Security Advisor fulfills outside of the national intelligence agencies.258 Notably, at least one Democratic candidate for president in 2020—former prosecutor Senator Amy Klobuchar—embraced this idea.259

A second route would be to create a Presidential Criminal Justice Advisory Commission rather than relying on a single advisor.260 This broader organization would lack the sharp focus a single advisor can muster, but has the advantage of including a diversity of viewpoints, and could include people with varying expertise, including those from particularly successful state systems.261

With either model, it would also allow for a new beginning and capabilities, including establishment of a data hub for metrics such as successful re-entry in support of a mission to promote public safety in the least costly way.262 At the very least, the DOJ’s chokehold on reform would finally be broken.

ii. Elected Prosecutors and Lawmaking in the States

In the states, the role of prosecutors in policy formation is more diffuse and obscured than the DOJ’s role within the federal government.263 Certainly, the election of progressive prosecutors is the most effective way to address the influence of prosecutors on policy; that effectively reverses the anti-reform dynamic.264 Even if they lose, progressive candidates for the office of elected prosecutor are likely to drive the discussion in the right direction and force establishment figures to recognize the problems with over-incarceration, cost, and cash bail, among other issues.265

In some states, too, it might be especially effective for faith groups to push for reform and directly press for less retributionist views from elected prosecutors. Some of the most conservative parts of the United States are also the areas where Christians most predominate. Certainly, the commonality of a faith centered on the life of someone who was unfairly tried, denied clemency, and executed (and who taught that “when I was in jail you visited me”)266 is an effective starting point in influencing Christian district attorneys and legislators alike.267

C. Boldness in the Ask

Finally, we must be bold in what we ask for, particularly in those periods in which reform seems most possible. Between 2009 and 2011, the first two years of the Obama administration, there was a tremendous and lost opportunity.268 Despite a motivated president (Obama) and Democratic majorities in both houses of Congress, the only significant advance in the field of criminal law through legislation was the tepid (yet important) Fair Sentencing Act, that reduced some crack sentences prospectively.269 Other legislative priorities—most prominently, the Affordable Care Act—took priority while time slipped away.270 We should have insisted on more.

We must also be more savvy about what we ask for. Too often, advocates seek the most obvious thing—for example, a reduction in the number of incarcerated people through sentencing reform. While that is important, seeking that kind of legislation is not the only thing we should be pursuing. To enact long-term change, we must also challenge decision structures and move to re-examine the very definitions of crimes.

The necessity to create structural change was well-illustrated by the Obama clemency effort. While that effort paired many petitioners with lawyers and managed to commute the sentences of about 1,715 incarcerated people,271 Obama never changed the unwieldy clemency review process that had hampered any fair use of the pardon power for decades,272 and the process he did use was hampered by infighting.273 In other words, instead of replacing a broken-down old machine, they simply cranked it harder. As one might expect, that worked, to a degree, for a while. But any legacy effect—a better process that would reduce incarceration over time—was forfeited by the failure to address structure.

Important structural changes (in addition to the clemency fix Obama did not make) could affect both the structure of advocates and the structure of government; these would include creation of an advocacy meta- organization by top funders and the addition of a non-DOJ criminal justice advisor to the White House. When we change structures, we mold outcomes both seen and unseen.

Good and great work is being done in the field of criminal law. The First Step Act has improved thousands of lives, saved taxpayer money, and offers a bipartisan template for success. But if that is all we hope for, we are leaving far too much on the table when the stakes are measured in lives and freedom. This is not a time for brutal timidity, and it never was.

*✕Robert and Marion Short Professor of Law, University of St. Thomas (MN), & Ruthie Mattox Chair of Preaching, First Covenant Church-Minneapolis. The author would like to thank the organizers and participants of Crimfest 2019 for their comments on a draft of this article.

1✕First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018).

2✕Trump Signs First Step Act, Wash. Post (Dec. 21, 2018, 3:21 PM EDT), https://perma.cc/6MBY-LQ27.

3✕Leonard Noisette, Time to Get Serious About Criminal Justice Reform, Open Soc’Y Found. (Apr. 30, 2015), https://perma.cc/KZ2W-6R4A.

4✕Mark Holden: Collaboration on Criminal Justice Reform Works, 3bl Media (May 30, 2019, 8:00 AM), https://perma.cc/X8D5-VLXW.

5✕Megan Keller, Mike Lee: Mandatory Sentencing Forces You to Ask, ‘Does This Punishment Fit the Crime?’, The Hill (Nov. 27, 2018, 10:19 AM EST), https://perma.cc/FD4T-3Y7X.

6✕Shaun King, How Bernie Sanders Evolved on Criminal Justice Reform, The Intercept (June 14, 2018, 11:16 a.m.), https://perma.cc/XZ4R-SB66.

7✕See generally Jan Ransom, Trump Will Not Apologize for Calling for Death Penalty Over Central Park Five, N.Y. Times (June 18, 2019), https://perma.cc/J59G-F72C (explaining how Trump took out newspaper advertisements to promote the death penalty just after five young black men were convicted, but the young men were later exonerated).

8✕Avery Anapol, Alice Marie Johnson, Granted Clemency by Trump, Moved to Tears at SOTU, The Hill (Feb. 5, 2019, 9:54 PM EST), https://perma.cc/F259-2ETG.

9✕See generally John F. Pfaff, Locked Up, The Baffler, July 2019, https://perma.cc/F924-23QW.

10 ✕E.g., Kirk Stange, Does Your Law Firm Have a Case of “The Slows?”, Jd Supra (Mar. 19, 2018), https://perma.cc/4PY7-Z5GK.

11 ✕See generally Bill J. Leonard, Baptists In America 13–30 (2005).

12 ✕Pete Williams, U.S. Incarceration Rate Drops 10 Percent Over Decade to Hit Lowest Level in 20 Years, Nbc News (Apr. 25, 2019, 9:01 AM EDT), https://perma.cc/Z5SE-QFHF.

13 ✕See Anti-Drug Abuse Act, Pub. L. No. 99-570, 100 Stat. 3207 (1986) (establishing mandatory minimum sentences based on the 100-to-1 ratio); U.S. Sentencing Guidelines Manual § 2D1.1 (U.S. Sentencing Comm’N 1987) (incorporating the ratio into the then-mandatory federal sentencing guidelines).

14 ✕Naomi Murakawa, The First Civil Right: How Liberals Built Prison America 133 (2014) (quoting Barney Frank (D-Mass.), one of the few dissenters in the House, who astutely observed that the legislation was like crack itself, in that it was “going to give people a short- term high, but is going to be dangerous in the long run and expensive to boot”).

15 ✕See Timeline: America’s War on Drugs, NPR (Apr. 2, 2007, 5:56 PM ET), https://perma.cc/RVU8-C2ZU.

16 ✕Comprehensive Crime Control Act of 1984, 18 U.S.C. § 1 (1984).

17 ✕See id. § 3559.

18 ✕See generally id. (tying the end of parole with the forthcoming institution of mandatory guidelines on Nov. 1, 1987).

19 ✕See generally The Bail Reform Act of 1984, 18 U.S.C. § 3141–3150 (2019); United States v. Salerno, 481 U.S. 739 (1987) (ruling against the constitutional claims that the Act was unconstitutional because the presumption of detention appeared to run afoul to the presumption of innocence under due process).

20 ✕Anti-Drug Abuse Act, Pub. L. No. 99-570, 100 Stat. 3207 (1986).

21 ✕See U.S. Sentencing Guidelines Manual (U.S. Sentencing Comm’N 1987).

22 ✕Anti-Drug Abuse Act, Pub. L. No. 100-690, 102 Stat. 4181 (1988).

23 ✕Franklin E. Zimring, Penal Policy and Penal Legislation in Recent American Experience, 58 STAN. L. REV. 323, 332 (2005).

24 ✕See id. at 329–30.

25 ✕One of those who failed to think through the consequences of these laws was me—I served as a federal prosecutor in Detroit from 1995–2000 and enforced these statutes in narcotics and other cases.

26 ✕See generally U.S. Sentencing Commission Hearing, 2/25/02: Powder Cocaine, Crack Cocaine, and Race, 14 Fed. Sent’G Rep. 204, 204–10 (2002) (noting the testimony of Wade Henderson, Executive Director of the Leadership Conference on Civil Rights, who placed the racial injustice of the crack debacle at the forefront of his testimony).

27 ✕Crack Cocaine Fast Facts, NAT’L DRUG INTELLIGENCE CTR., https://perma.cc/4F49-N7FV (last visited June 3, 2021).

28 ✕See David A. Sklansky, Cocaine, Race, and Equal Protection, 47 STAN. L. REV. 1283, 1288 (1995).

29 ✕See Rachel Elise Barkow, PRISONERS OF POLITICS: BREAKING THE CYCLE OF MASS INCARCERATION 74 (2019) (discussing that in 2013, 83% of the people charged with trafficking crack were Black, but only 5.8% were white—in that same year, in contrast, black defendants comprised only 31.5% of the less-harshly-punished powder cocaine caseload).

30 ✕Criticizing Sentencing Rules, U.S. Judge Resigns, N.Y. Times (Sept. 30, 1990), https://perma.cc/TTD2-8Q2R.

31 ✕Id.

32 ✕Neil A. Lewis, Daniel J. Freed Dies at 82; Shaped Sentencing in U.S., N.Y. Times (Jan. 22, 2010), https://perma.cc/3GEW-6NLZ.

33 ✕Daniel J. Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers, 101 YALE L.J. 1681, 1752 (1992).

34 ✕In discussing the push for reform, I focus on the Sentencing Commission. While other actors certainly played a role (including advocates, courts, and some members of the legislature) it was the Sentencing Commission that most clearly illustrates the arc of reform across the time period examined.

35 ✕Cocaine Sentencing, Still Unjust, N.Y. Times (Nov. 5, 1995), https://perma.cc/Z6N7-DZW9.

36 ✕U.S. Sentencing Comm’N, Special Report To The Congress: Cocaine And Federal Sentencing Policy vi (1995), https://perma.cc/L75S-5P3A.

37 ✕Id. at xi.

38 ✕See generally James Forman, Jr., Locking Up Our Own: Crime And Punishment In Black America 164 (2017) (evaluating Congress’s role and concluding: “[b]ecause the hundred-to-one ratio had so little to justify it, and because African Americans were more likely to be involved in the crack trade, the law’s harsher treatment of crack defendants became one of the most grotesque examples of racial discrimination in the criminal justice system”).

39 ✕See generally U.S. Sentencing Comm’N, Special Report To The Congress: Cocaine And Federal Sentencing Policy (1997) , https://perma.cc/ZV3Q-4YF2.

40 ✕See generally U.S. Sentencing Comm’N, Report To The Congress: Cocaine And Federal Sentencing Policy (2002), https://perma.cc/FYA4-SUDP.

41 ✕See id. at 93.

42 ✕See id. at 97.

43 ✕See id. at 100.

44 ✕See id. at 102.

45 ✕See id. at 102, 107 (suggesting that the crack threshold be raised by a factor of five, creating a 20-to-1 ratio).

46 ✕See generally U.S. Sentencing Comm’N, supra note 39.

47 ✕See generally U.S. Sentencing Comm’N, Report To The Congress: Cocaine And Federal Sentencing Policy (2007), https://perma.cc/FM5T-5JR3.

48 ✕Id. at 9.

49 ✕Fair Sentencing Act, Pub. L. No. 111-220, 124 Stat. 2372 (2010).

50 ✕Gary Fields & Beth Reinhard, Jeff Sessions, Civil-Rights Groups Find Some Common Ground on Crack Sentencing, Wall St. J. (Dec. 7, 2016, 1:57 PM ET), https://perma.cc/2AUC-PNNU.

51 ✕See Frequently Asked Questions: 2011 Retroactive Crack Cocaine Guideline Amendment, U.S.

52 ✕Sent’G Commission, https://perma.cc/U3CW-M4RB (last visited June 3, 2021). 52 See First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018).

53 ✕I avoid describing the drugs in these schedules as “illegal,” as most of them are legal under certain circumstances, such as when prescribed or in authorized research.

54 ✕See generally Comprehensive Drug Abuse Prevention and Control Act, Pub. L. No. 91-513, 84 Stat. 1236 (1970).

55 ✕21 U.S.C. § 812(b) (2018) (codifying Comprehensive Drug Abuse Prevention and Control Act of 1970).

56 ✕Id. § 812(b)(1)(A).

57 ✕Id. § 812(b)(1)(B).

58 ✕Id. § 812(b)(1)(C).

59 ✕Id. § 812(b)(1).

60 ✕Id. § 812(b)(5)(A).

61 ✕21 U.S.C. § 812(b)(5)(B).

62 ✕Id. § 812 Schedule I(a)–(c) (2018).

63 ✕Id. § 812 Schedule II (2018); see Position Statement: Medical Use of Cocaine, AM. ACAD. OF OTOLARYNGOLOGY–HEAD AND NECK SURGERY (Apr. 21, 2021), https://perma.cc/X2DY-TLEW (stating that cocaine is used medically as an anesthetic).

64 ✕21 U.S.C. § 812 Schedule III(a)(1), (d)(1).

65 ✕See David R. Katner, Up in Smoke: Removing Marijuana from Schedule I, 27 B.U. PUB. INT. L.J. 167, 184–85 (2018) (explaining that the motivation for this regulation was in part driven by racism and the stereotyping by those who assumed marijuana was a drug used by minorities). See generally 26 U.S.C. § 4741 (repealed 1971) (listing marihuana as a taxable commodity).

66 ✕21 U.S.C. § 812 Schedule I(c)(10).

67 ✕See id. § 823.

68 ✕See National Org. for the Reform of Marijuana Laws v. Bell, 488 F. Supp. 123, 134 (D.D.C. 1980) (adding more confusion to the senselessness of the classification is the bare fact that two commonly used legal substances, alcohol and nicotine, meet each of the criteria for Schedule I yet were not included—this point was raised by advocacy groups early on, and ignored).

69 ✕Katner, supra note 65, at 188.

70 ✕See United States v. LaFroscia, 354 F. Supp. 1338, 1340–41 (S.D.N.Y. 1973).

71 ✕See 21 U.S.C. § 811(a) (2015).

72 ✕National Org. for the Reform of Marijuana Laws v. DEA, 559 F.2d 735, 742 (D.C. Cir. 1977).

73 ✕Gonzales v. Raich, 545 U.S. 1, 15 n.23 (2005); Katner, supra note 65, at 190.

74 ✕James Brooke, The 1998 Elections: The States—Drug Policy; 5 States Vote Medical Use of Marijuana, N.Y. Times (Nov. 5, 1998), https://perma.cc/PE7K-7AH2.

75 ✕State Medical Marijuana Laws, Nat’L Conf. Of St. Legislatures, https://perma.cc/E3WZ-8HFC (last updated May 17, 2021).

76 ✕Id.(listingAlaska,California,Colorado,Illinois,Maine,Massachusetts,Michigan,Nevada, Oregon, Vermont, and Washington—since 2019 other additional states have passed adult use measures).

77 ✕See Memorandum from James M. Cole, Deputy Att’y Gen., U.S. Dep’t of Justice, to All U.S. Attorneys, Guidance Regarding Marijuana Enforcement (Aug. 29, 2013), https://perma.cc/9CF3-FS38.

78 ✕Ariana Eunjung Cha, Marijuana Research Hampered by Access from Government and Politics, Scientists Say, Wash. Post (Mar. 21, 2014), https://perma.cc/C7W2-XN7U.

79 ✕Bill Piper, There’s Something Missing from Our Drug Laws: Science, Wash. Post (Apr. 28, 2016, 12:09 PM EDT), https://perma.cc/USU7-2JUN; see John Hudak & Grace Wallack, How to Reschedule Marijuana, and Why It’s Unlikely Anytime Soon, Brookings Institution (Feb. 13, 2015), https://perma.cc/9M8D-T2LJ.

80 ✕Francis X. Clines, The Might-Have-Beens of Marijuana, N.Y. Times (Feb. 24, 2016, 5:17 PM), https://perma.cc/U578-LPQZ.

81 ✕21 U.S.C. § 811(a) (2015).

82 ✕Justin Miller, The New Reformer DAs, Am. Prospect (Jan. 2, 2018), https://perma.cc/5HMH-3DEA.

83 ✕See Coleman v. Schwarzenegger, 922 F. Supp. 2d 882, 908 (E.D. Cal. 2009) (estimating peak population at about 170,000); Susan Turner, Moving California Corrections from an Offense to Risk- Based System, 8 U.C. Irvine L. Rev. 97, 99–100 (2018) (stating the overcrowding of California’s prisons was spurred by a turn towards determinate sentencing in 1977, which restricted judicial discretion and mandated longer sentences).

84 ✕Tim Arango, In California, Criminal Justice Reform Offers a Lesson for the Nation, N.Y. Times (Jan. 21, 2019), https://perma.cc/3E9M-X92Z.

85 ✕Sacramento Bee & Propublica, A Brief History of California’s Epic Journey Toward Prison Reform, PAC. STANDARD (May 29, 2019), https://perma.cc/YX6X-RJ5H.

86 ✕See id.

87 ✕Brown v. Plata, 563 U.S. 493, 502 (2011).

88 ✕See id. at 501.

89 ✕See Jennifer Medina, California Begins Moving Prison Inmates, N.Y. Times (Oct. 8, 2011), https://perma.cc/99DW-496G.

90 ✕Notably, the shifting of bodies from prisons to jails in itself should not be considered a reduction in incarceration even as it does reduce the population of state prisons.

91 ✕See Clifton B. Parker, California’s Early Release of Prisoners Proving Effective So Far, Stanford Experts Say, STAN. NEWS (Nov. 2, 2015), https://perma.cc/SY9W-JS3K (“In 2014, however, state voters approved Prop. 47, which converted six nonviolent offenses related to drug and property offenses from felonies to misdemeanors, which makes early release possible.”).

92 ✕See generally Abbie Vansickle & Manuel Villa, California’s Jails Are So Bad Some Inmates Beg to Go to Prison Instead, L.A. Times (May 23, 2019, 3 AM PT), https://perma.cc/3CVC-NEX9.

93 ✕Jason Pohl & Ryan Gabrielson, ‘Hellbent’ on Killing: Homicides Surge in Overwhelmed California Jails, Sacramento Bee (June 13, 2019, 5:00 AM), https://perma.cc/LA94-MESC.

94 ✕See generally Becca Habegger, Has Criminal Justice Reform Gone Too Far? One California Lawmaker Thinks So, ABC10, https://perma.cc/763H-APCG (last updated Feb. 21, 2019, 3:47 AM PST).

95 ✕Id.

96 ✕See 2018 National and State Population Estimates, U.S. Census Bureau, 2018-02: Table 2 (Dec. 19, 2018), https://perma.cc/4VQS-Y5UW.

97 ✕Dan Sweeney, Why Is the Prison Population So High in Florida? You Asked, We Answer, S. Fla. Sun Sentinel (June 10, 2019), https://perma.cc/LN8N-GU3R (stating Florida’s incarcerated population was about 176,000 in 2018 including state prison, local jail, federal prison, youthful offenders, and people involuntarily committed under the Baker Act).

98 ✕See Peter Wagner, State Prison Population in Florida, Prison Pol’Y Initiative, https://perma.cc/UQ4U-Q7LB (last visited June 4, 2021).

99 ✕E.g., Shawn Mulcahy, Advocates Call ‘Horse Meat’ on Criminal Justice Reform, WUSF PUB. MEDIA (June 27, 2019, 3:43 PM EDT), https://perma.cc/4RMQ-GMNQ.

100✕ SenateBill642IsonTracktoProvideaRealFirstStepTowardCriminalJusticeReforminFlorida, ACLU FLA. (Apr. 18, 2019), https://perma.cc/DF5D-HLAR.

101✕ Id.

102✕ See Sun Sentinel Editorial Bd., Florida Misses Big Opportunity on Criminal Justice Reform | Editorial, S. Fla. Sun Sentinel (May 8, 2019, 3:49 PM), https://perma.cc/Z3R4-GRWB.

103✕ Mark Hunter, Florida Sheriffs Association Statement on Florida First Step Act—SB 642, Fla. Sheriffs Ass’N (Apr. 16, 2019), https://perma.cc/TF4Y-U3J8.

104✕ Ryan Nicol, Criminal Justice Reform Package Signed into Law, Fla. Pol. (June 29, 2019), https://perma.cc/5VQC-EHH3.

105✕ FN106: See Emily L. Mahoney, Legislature OKs Criminal Justice Reforms but No Change to Mandatory-Minimum Sentencing, Miami Herald (May 3, 2019, 3:27 PM), https://perma.cc/9BJ2- 8F8W.

106✕ Id.

107✕ See Times-Union Editorial Bd., Wednesday Editorial: Reform Florida’s Prisons Now, Fla. Times-Union Jacksonville (July 17, 2019, 2:01 AM), https://perma.cc/2S4H-YCGY (noting the need for reform goes beyond simply reducing prison populations because Florida “has the worst prison system in the nation. It’s filled with violence, riddled with scandals and incredibly ineffective in rehabilitating prisoners”).

108✕ Joshua Aiken, Alaska’s Prison Population, Prison Pol’Y Initiative, https://perma.cc/8HX9-JQRE (last visited June 4, 2021).

109✕ Alaska Profile, Prison Pol’Y Initiative, https://perma.cc/B9BZ-KG5M (last visited June 4, 2021).

110✕ Id.

111✕ Brad A. Myrstol & Pamela Cravez, Crime Rates and Alaska Criminal Justice Reform, 34 ALASKA JUST. FORUM, No. 2, Fall 2017, at 1, https://perma.cc/8BTV-RLQX.

112✕ Michael A. Rosengart, Note, Justice Reinvestment in Alaska: The Past, Present, and Future of SB 91, 34 ALASKA L. REV. 237, 238 (2017).

113✕ 2016 Alaska Sess. Laws ch. 36; see Rosengart, supra note 112, at 239.

114✕ Zachariah Hughes, Residents Rail Against SB91 at Rare Anchorage Meeting, Alaska Pub. Media (Oct. 9, 2017), https://perma.cc/KXW2-FANE.

115✕ S. 54, 30th Leg., 1st Sess. (Alaska 2017); 2017 Alaska Sess. Laws ch. 1.

116✕ Frequently Asked Questions: Sb54, St. Of Alaska Dep’T Of Law (Sept. 26, 2017), https://perma.cc/CR8Z-JURW.

117✕ Rebecca Palsha, Is SB91 Working? A New Report Says It’s Helping, KTUU (Nov. 1, 2018, 7:54 PM EDT), https://perma.cc/HG6D-4Y66.

118✕ Tim Bradner, Progress: Crime Is Going Down And Vilified Sb 91 Deserves Some Of The Credit, Anchorage Press (Mar. 15, 2019), https://perma.cc/UPB4-JUMN.

119✕ Dan Carothers, Repeal SB 91 Completely, Juneau Empire (July 31, 2018, 1:04 PM), https://perma.cc/T6FK-NEBE.

120✕ ACLU of Alaska Responds to Sen. Costello’s Call to Repeal SB 91, Aclu Alaska (Sept. 22, 2017, 9:45 AM), https://perma.cc/8TXK-FHKA.

121✕ Zachary A. Siegel, Alaska Passed Sweeping Criminal Justice Reforms. Its New Governor Just Unraveled Them, The Appeal (July 11, 2019), https://perma.cc/SQ3Q-FM27.

122✕ James Brooks, Dunleavy Opens His ‘War on Criminals’ with Push for Repeal of SB 91, Anchorage Daily News (Jan. 23, 2019), https://perma.cc/RSF5-99HB.

123✕ Senate Repeals and Replaces SB 91, Anchorage Press (May 14, 2019), https://perma.cc/2QDA-4YVN.

124✕ James Brooks, Gov. Dunleavy Signs Legislation to Repeal, Replace the Crime-Reform Measure SB 91, Anchorage Daily News (July 8, 2019), https://perma.cc/4BTM-NM7B.

125✕ See German Lopez, Bernie Sanders Wants to Expand Voting Rights by Letting People in Prison Vote, VOX (Apr. 8, 2019, 12:20 PM EDT), https://perma.cc/5HLA-KPAR (stating that Vermont and Maine currently allow incarcerated citizens to vote).

126✕ See generally Dana Liebelson, In Prison, and Fighting to Vote, The Atlantic (Sept. 6, 2019), https://perma.cc/Q3QS-CVHX (discussing how there are groups that are working to give prisoners the ability to vote); supra Part I(C) (discussing how reform is needed in state laws).

127✕ E.g., Phillip Moeller, Threats to Medicare, Social Security in the Spotlight Ahead of Midterm Elections, PBS (Sept. 26, 2018, 5:39 PM EDT), https://perma.cc/ST4R-4A8F.

128✕ See Ending Mass Incarceration, Vera Inst. Of Just., https://perma.cc/MMB2-GJL4 (last visited June 4, 2021); Kevin Keenan & Karina Schroeder, Jurisdictions Should Embrace Voting Rights for All Americans—Including Those Who Are Incarcerated, Vera Inst. Of Just. (Nov. 2, 2018), https://perma.cc/X4ZP-W533 (acknowledging that formerly incarcerated people can be an important voting bloc in some communities and have taken a leading role in pushing for reform).

129✕ Timeline, FRONTLINE PBS, https://perma.cc/GG7P-CQYJ (last visited June 4, 2021) (displaying a timeline of the history and spread of meth).

130✕ See, e.g., Josh Anderson, Meth-Contaminated Home Sickens Family, N.Y. Times (July 13, 2009), https://perma.cc/DKG2-VGYY (showing a series of photo essays); Marilyn Berlin Snell, Welcome to Meth Country, SIERRA CLUB MAG., Jan./Feb. 2001, https://perma.cc/3CXM-TWJ9.

131✕ See Caryn Rousseau, Meth Lab Injuries Burden Hospitals, L.A. Times (May 18, 2003, 12 AM PT), https://perma.cc/JDY2-SX7S.

132✕ Timothy Egan, Meth Building Its Hell’s Kitchen in Rural America, N.Y. Times (Feb. 6, 2002), https://perma.cc/W98T-YGA7.

133✕ Abby Goodnough, States Battling Meth Makers Look to Limit Ingredients, N.Y. Times (Mar. 28, 2011), https://perma.cc/HH8W-HNQC.

134✕ See Frances Robles, Meth, the Forgotten Killer, is Back. And It’s Everywhere., N.Y. Times (Feb. 13, 2018), https://perma.cc/335C-8AN9.

135✕ See Jeff Jarvis, The Spiegel Scandal and the Seduction of Storytelling, MEDIUM (Dec. 24, 2018), https://perma.cc/B9WN-4FW6 (noting that a number of scandals have involved false narratives concocted by reporters).

136✕ See id. The timeline for offender and victim is often differently described. The victim’s story often includes what happened before the event (i.e., “a teacher for 13 years”) and is likely to happen after the event (“fears returning to work”), but except for criminal history the offender’s story in the media is limited to the few moments of the offense.

137✕ See Barkow, supra note 29, at 109.

138✕ E.g., Kimbriell Kelly & Steven Rich, For Unsolved Cases Lasting a Year, Finding the Killer Becomes Nearly Impossible, Wash. Post (Dec. 28, 2018, 2:00 PM UTC), https://perma.cc/42XU-YJCF.

139✕ John Gramlich, Voters’ Perceptions of Crime Continue to Conflict with Reality, Pew Res. Ctr. (Nov. 16, 2016), https://perma.cc/DV8X-VGCU.

140✕ Id.

141✕ Barkow, supra note 29, at 108.

142✕ See generally Carl Hart, High Price: A Neuroscientist’S Journey Of Self-Discovery That Challenges Everything You Know About Drugs And Society (2013) (highlighting a fascinating study of the actual effects of crack).

143✕ See U.S. Sentencing Comm’N, supra note 40, at 16–17, 19.

144✕ Leigh Donaldson, When the Media Misrepresents Black Men, the Effects Are Felt in the Real World, The Guardian (Aug. 12, 2015, 12:15 PM EDT), https://perma.cc/H3AY-HHHS; see Charles F. Coleman, Jr., ‘Thug’ is the New N-Word, EBONY MAG., (May 27, 2015), https://perma.cc/EVX6-YRMN. See generally Craig Reinarman & Harry G. Levine, Crack In America: Demon Drugs And Social Justice 1–17 (1997).

145✕ Nakia D. Hansen, Whitney Houston and the Problem with the ‘Crack Whore’ Term, PARLOUR (Feb. 18, 2012), https://perma.cc/9MHV-BF32.

146✕ Kirsten West Savali, For the Record: ‘Superpredators’ Is Absolutely a Racist Term, The Root (Sept. 30, 2016, 12:42 PM), https://perma.cc/9KRJ-VDP7.

147✕ Safia Samee Ali, In Discussing Chicago’s Violence, Trump Generalizes About Race, Nbc News (October 12, 2016, 7:43 AM EDT), https://perma.cc/3C5Q-Cnn5.

148✕ See id.

149✕ Brian Gilmore, Again and Again We Suffer: The Poor and the Endurance of the “War on Drugs,” 15 Udc/Dcsl L. Rev. 59, 61–62 (2011).

150✕ WilliamJ.Stuntz,The Pathological Politics of Criminal Law,100 Mich. L. Rev. 505,530(2001).

151✕ Id. (making the point that politicians often campaign on sentencing issues, but rarely on the definition of crimes, which are much more nuanced questions).

152✕ Supra Part I(C)(3).

153✕ LauraBradley,DonaldTrump’sAll-ConsumingObsessionwithTVRatings:AHistory,VANITY FAIR (Jan. 20, 2017), https://perma.cc/45S8-LF3A; David Eads, Too Many Politicians Misuse and Abuse Crime Data, N.Y. Times (Aug. 10, 2018), https://perma.cc/YG5D-FC43.

154✕ See Barkow, supra note 29, at 108.

155✕ Michael Tonry, Punishing Race: A Continuing American Dilemma 164–76 (2011).

156✕ The Growth Of Incarceration In The United States: Exploring Causes And Consequences 58 tbl. 2-2 (Jeremy Travis, Bruce Western & Steve Redburn eds. 2014), https://perma.cc/F79Q-WG79.

157✕ Rachel E. Barkow & Mark Osler, Designed to Fail: The President’s Deference to the Department of Justice in Advancing Criminal Justice Reform, 59 Wm. & Mary L. Rev. 387, 395 (2017).

158✕ Id.

159✕ Id. at 396.

160✕ Obama at Howard, The Atlantic (Sept. 29, 2007), https://perma.cc/XYH9-5D56 (detailing statements from then-candidate Obama that it was “time to seek a new dawn of justice in America,” and that he would “brave the politics” necessary to fix the system).

161✕ Criminal Justice Reform, White House Briefing Room, https://perma.cc/HVP7-PB3D (last visited June 4, 2021).

162✕ Peter Baker, Obama, in Oklahoma, Takes Reform Message to the Prison Cell Block, N.Y. Times (July 16, 2015), https://perma.cc/SWK7-44H7.

163✕ Jordan Fabian, Obama Takes Former Prisoners Out to Lunch, The Hill (Mar. 30, 2016, 1:05 PM EDT), https://perma.cc/6WA7-4PHN.

164✕ See id.

165✕ Barack Obama, The President’s Role in Advancing Criminal Justice Reform, 130 Harv. L. Rev. 811 (2017).

166✕ Barkow, supra note 157, at 425–40.

167✕ Barkow, supra note 157, at 406–24.

168✕ Barkow, supra note 157, at 441–48.

169✕ Ronald F. Wright, The Wickersham Commission and Local Control of Criminal Prosecution, 96 Marq. L. Rev. 1199 (2012) (detailing how in 1931, a national commission recommended that states centralize prosecution in the hands of the state attorney general, but this advice was uniformly rejected).

170✕ Barkow, supra note 29, at 51.

171✕ Stuntz, supra note 150, at 534. This interest converges with that of legislators.

172✕ See generally 21 U.S.C. § 851 (1970) (showing that the enhancements on federal drug charges, which are a frequent target of reformers, are employed at the discretion of prosecutors).

173✕ Emily Bazelon & Miriam Krinsky, There’s a Wave of New Prosecutors. And They Mean Justice, N.Y. Times (Dec. 11, 2018), https://perma.cc/TZF8-KHV5.

174✕ Ronald F. Wright & Kay L. Levine, Career Motivations of State Prosecutors, 86 Geo. Wash. L. Rev. 1667, 1709–10 (2018).

175✕ Daniel Nichanian, Prosecutor Sends Staff to Prison, in a Bid to Counter Their Reflex to Incarcerate, The Appeal (Aug. 14, 2019), https://perma.cc/5WZR-DAXA.

176✕ See generally Jill Filipovic, The NRA Has a Problem—But It’s Not the One Making Headlines, Cnn (Apr. 30, 2019, 11:47 PM EDT), https://perma.cc/Y4QX-8D3F.

177✕ Brennan Weiss & Sky Gould, 5 Charts That Show How Powerful the NRA Is, Bus. Insider (Feb. 20, 2018, 5:00 PM), https://perma.cc/A4UA-PGQL.

178✕ Tim Carney, Wealthy AARP: One of the Country’s Most Powerful Lobbies, Hum. Events (Mar. 25, 2010), https://perma.cc/82TC-VRMJ.

179✕ See generally About Us, Alliance For Auto Innovation, https://perma.cc/M7XR-66PM (last visited June 4, 2021).

180✕ Supra Part II(A)(3)(i).

181✕ See Criminal Justice Reform, Namaste Found., https://perma.cc/UGJ6-G4CF (last visited June 4, 2021); Partner Organizations & Groups, Just. Pol’Y Inst., https://perma.cc/ET3D-DQJQ (last visited June 4, 2021); Prison Reform Organizations, Ctr. For Prison Reform, https://perma.cc/NNS5-7S4R (last visited June 4, 2021).

182✕ Our Mission, Fams. Against Mandatory Minimums, https://perma.cc/F635-E4Y4 (last visited June 4, 2021).

183✕ Mission and Vision, Nat’L Ass’N Of Crim. Def. Law., https://perma.cc/5FJJ-NZ7H (last visited June 4, 2021).

184✕ 130 Top Police Chiefs and Prosecutors Urge End to Mass Incarceration, Brennan Ctr. For Just. (Oct. 21, 2015), https://perma.cc/VQ66-CLWC.

185✕ About the ACLU Criminal Law Reform Project, ACLU, https://perma.cc/JJH3-J4EQ (last visited June 4, 2021).

186✕ Race & Justice, Naacp, https://perma.cc/2AMM-26FR (last visited June 4, 2021).

187✕ See CAN-DO’s Founder—Amy Ralston Povah, CAN-DO (Oct. 8, 2014), https://perma.cc/3QGR-QZ93 (explaining that CAN-DO was founded by Amy Povah, who was granted clemency by President Clinton); see also Mary Elizabeth Williams, Is There Real Hope for Prison Reform? Nonviolent Offenders and the "Kim Kardashian Moment," SALON (June 29, 2018, 7:00 AM EDT), https://perma.cc/6KNR-FXDH.

188✕ Who We Are, Dream Corps Just., https://perma.cc/8ZHA-TMH3 (last visited June 4, 2021).

189✕ About Right On Crime, Right On Crime, https://perma.cc/L7E5-CVRN (last visited June 4, 2021).

190✕ Koch-Backed Criminal Justice Reform Bill to Reach Senate NPR (Dec. 16, 2018, 5:37 PM ET), https://perma.cc/824H-RWG8.

191✕ See And Justice for All, Koch Indus., https://perma.cc/VV8W-AKP7 (last visited June 4, 2021) (emphasizing the work of Mark Holden, General Counsel of Koch Industries).

192✕ See Criminal Justice, Nyu Law, https://perma.cc/A3W2-TQMU (last visited June 4, 2021) (recognizing criminal justice advocates Rachel Barkow and Bryan Stevenson); Douglas Aaron Berman, SCHOLARS STRATEGY NETWORK, https://perma.cc/Y8SQ-ZF6S (last visited June 4, 2021) (recognizing criminal justice advocate Douglas A. Berman); Sharon Grigsby, Non-Violent Drug Sentencing Has Left Thousands of People Buried Alive in Prison, SMU (Feb. 23, 2018), https://perma.cc/QEH7-G5DU (recognizing criminal justice advocate Brittany K. Barnett); Michelle Alexander, N.Y. Times, https://perma.cc/2KTB-58L6 (last visited June 4, 2021) (listing the articles of criminal justice advocate Michelle Alexander); Paul J. Larkin Jr., The Heritage Found., https://perma.cc/4Y9D-2NZ3 (last visited June 4, 2021) (recognizing criminal justice advocate Paul J. Larkin); Prisons and Justice Initiative: Faculty Advisory Board, GEO. U., https://perma.cc/3YWJ-KS5P (last visited June 4, 2021) (recognizing the faculty advisory board for Initiative, including Paul Butler and Shon Hopwood).

193✕ See About Us, Crack Open The Door, https://perma.cc/T9U4-SCKK (last visited June 4, 2021) (noting that the most effective advocates were formerly incarcerated); Cannabis Is Not a Crime, The Weldon Project, https://perma.cc/58GS-HH8D (last visited June 4, 2021).

194✕ Soros Justice Fellowships, Open Soc’Y Found., https://perma.cc/7SRC-MJGF (last visited June 4, 2021).

195✕ Leading With Conviction, Just Leadership Usa, https://perma.cc/MP8L-ZZ3F (last visited June 4, 2021).

196✕ See Nkechi Taifa to Leave Open Society Foundations, Start Own Firm, Wash. Informer (Oct. 17, 2018), https://perma.cc/N5D4-3DBD (noting that Taifa launched Justice Roundtable, a coalition of more than 100 groups, shortly after joining Open Society).

197✕ See, e.g., Working Groups, Just. Roundtable, https://perma.cc/5T2N-4NQS (last visited June 4, 2021).

198✕ See Helena Andrews-Dyer, Kim Kardashian Is Still Fighting for Criminal Justice Reform, Wash. Post (Jan. 31, 2019, 2:12 PM EST), https://perma.cc/M6W7-PWMB.

199✕ Hayley Prokos, Kim Kardashian Wears $72,000 outfit to White House to Discuss Criminal Justice Reform, Newsweek (June 14, 2019, 5:34 PM EDT), https://perma.cc/CA4Y-MZYA.

200✕ Leigh Courtney & Elizabeth Pelletier, What Do Victims Want from Criminal Justice Reform?, URB. INST. (Aug. 5, 2016), https://perma.cc/DQB5-8FHZ.

201✕ Victims’ Voices for Reform, Pew Charitable Tr. (Aug. 2015), https://perma.cc/CR4E-RC4A.

202✕ E.g., Our Mission, Law Enforcement Leaders, https://perma.cc/WBW9-XELS (last visited June 5, 2021) (describing how the Law Enforcement Leaders to Reduce Crime and Incarceration, a group of current and former police officers and prosecutors, puts these dual goals at the center of their mission).

203✕ See supra Part I(A).

204✕ E.g., Spears v. United States, 555 U.S. 261, 264 (2009); Kimbrough v. United States, 552 U.S. 85, 110 (2007).

205✕ Fair Sentencing Act, Pub. L. No. 111–220, 124 Stat. 2372 (2010).

206✕ First Step Act, Pub. L. No. 115–391, 132 Stat. 5194 (2018).

207✕ Mola Lenghi, More Than 3,000 Prisoners Released Under First Step Act, CBS (July 19, 2019, 6:44 PM), https://perma.cc/C5TZ-V3EB.

208✕ See, e.g., Matthew Charles, I Was Released Under the First Step Act. Here Is What Congress Should Do Next, Wash. Post (Feb. 1, 2019, 11:19 AM EST), https://perma.cc/972V-YSW6 (noting that some of those stories received more attention than others, and Matthew Charles, who had been released by error then re-incarcerated before being released under the First Step Act and whose story was well-chronicled, used this platform to tell his own story).

209✕ Douglas A. Berman, The Many (Opaque) Echoes of Compromise Crack Sentencing Reform, 23 Fed. Sent’G Rep. 167, 168 (2011).

210✕ Shon Hopwood, Book Review, Caught: The Prison State and the Lockdown of American Politics, 66 J. Legal Educ. 445, 454 (2017).

211✕ See Van Jones & Jessica Jackson, Why We’re Celebrating a Three-Month-Old Law, Cnn, https://perma.cc/3DSK-46UF (last updated Apr. 21, 2019, 3:34 PM EDT) (explaining that Jones and Jackson were co-founders of the advocacy group #Cut50, now known as Dream Corps Justice).

212✕ See generally Eli Hager, When ”Violent Offenders” Commit Non-Violent Crimes, The Marshall Project (Apr. 3, 2019, 6:00 AM), https://perma.cc/H39K-G445 (explaining the definition of “violent” and “non-violent” crimes and that they are subject to vigorous debate).

213✕ Jordan Maglich, DOJ’s New Clemency Program Targets Nonviolent Drug Offenders, FED. LAW., Sept. 2015, at 4, https://perma.cc/J9L7-9CV8 (explaining that the Obama clemency initiative was expressly directed at “non-violent” offenders).

214✕ See John Pfaff, What Democrats Get Wrong About Prison Reform, Politico (Aug. 14, 2019), https://perma.cc/9K9T-GBLQ.

215✕ See generally Table 12: Offenders Receiving Sentencing Options in Each Primary Offense Category, U.S. Sentencing Comm’N, https://perma.cc/T4LN-QHLM (last visited June 5, 2021) (describing that in 2017 the federal system processed through sentencing over 20,000 drug cases and over 6,000 fraud cases, but only 72 murders, 62 manslaughters, and 783 assaults).

216✕ See generally German Lopez, The First Step Act, Congress’s Criminal Justice Reform Bill, Explained, VOX, https://perma.cc/64EW-CQSK (last updated Dec. 11, 2018, 11:54 AM EST).

217✕ See John Pfaff, Five Myths About Prisons, Wash. Post (May 17, 2019, 6:23 AM EDT), https://perma.cc/2ND2-ATZ8.

218✕ See Who We Are, supra note 188 (describing one of the most prominent of these groups: Dream Corps Justice, formerly #cut50).

219✕ See Pfaff, supra note 214.

220✕ See Editorial Bd., For Some of D.C.’s Most Violent Criminals, a Get-Out-of-Jail-Soon Card, Wash. Post (Aug. 18, 2019, 5:50 PM EDT), https://perma.cc/BXW6-TRBG.

221✕ In fairness, I should recognize that my own advocacy efforts are fairly described as incrementalist.

222✕ See supra Part II(B)(1).

223✕ Robert D. McFadden, David Koch, Billionaire Who Fueled Right-Wing Movement, Dies at 79, N.Y. Times (Aug. 23, 2019), https://perma.cc/4FLU-7QVK (noting Charles is the surviving member of the Koch brothers, as his brother David died on August 23, 2019.).

224✕ See Phillip Elliot, The Koch Brothers are Pushing for Criminal Justice Changes, TIME (Jan. 29, 2018, 5:09 PM EST), https://perma.cc/833S-X9NX; Vikrant Reddy, Criminal Justice Reform in 60 Seconds, Charles Koch Inst. (Nov. 7, 2015), https://perma.cc/HP5E-RNM2.

225✕ See Scott Bland, George Soros’ Quiet Overhaul of the U.S. Justice System, Politico (Aug. 30, 2016, 5:25 AM EDT), https://perma.cc/DRB2-CV7A.

226✕ See Michael Hirsch, Charles Koch, Liberal Crusader? He’s One of the Left’s Biggest Bogeymen. Now He’s Teaming Up with George Soros, Politico MAG., Mar./Apr. 2015, https://perma.cc/L48B-6YCH.

227✕ Joshua Keating, Why It Makes Sense That Soros and Koch Are Uniting to Fund a New Anti- War Think Tank, Slate (July 3, 2019, 12:42 PM), https://perma.cc/P3VM-3972.

228✕ See supra Part II(B)(1) (explaining the experience of Nkechi Taifa and her Justice Roundtable, which has come closest to coordinating the many branches of advocacy and to which such an organization would be wise to look).

229✕ Mark Osler, Asset Forfeiture in a New Market-Reality Narcotics Policy, 52 Harv. J. On Legis.

221✕, 228 (2015).

230✕ Id. at 223–24.

231✕ See Lynne Henderson, Revisiting Victim’s Rights, 1999 Utah L. Rev. 383, 410–11 (1999) (explaining that even simple tools like victim impact statements can be problematized).

232✕ Caitlin Delong & Jessica Reichert, The Victim-Offender Overlap: Examining the Relationship Between Victimization and Offending, Ill. Crim. Just. Info. Auth. (Jan. 9, 2019), https://perma.cc/8A7L-F57H.

233✕ Robert Rooks, Point of View: Important Solutions on Criminal Justice Reform, and a Turning Point for Florida, Palm Beach Post (July 10, 2019, 7:31 AM), https://perma.cc/2KE4-GPP7.

234✕ Richard Neely, The Politics of Crime, The Atlantic, Aug. 1982.

235✕ John Gramlich, What the Data Says (And Doesn’t Say) About Crime in the United States, Pew Res. Ctr. (Nov. 20, 2020), https://perma.cc/LRB2-FPCD.

236✕ Most Important Problem, Gallup, https://perma.cc/AUN7-CQQZ (showing that the problem of “drugs,” which was listed separately, was only the “most important problem” for less than 0.5% of Americanst) (last visited June 4, 2021).

237✕ See Julia Carrie Wong, Trump Referred to Immigration ‘Invasion’ in 2,000 Facebook Ads, Analysis Reveals, The Guardian (Aug. 5, 2019, 17:58 EDT), https://perma.cc/A9QJ-WXTX (describing that the same Gallup poll in 2019 found the most important issue to be immigration—which President Trump had promoted as a threat to American Safety and economic well-being).

238✕ See Mark Dent, Abortion, Reparations, Israel: Topics to Watch for During the Second Democratic Debate, FORTUNE (July 30, 2019, 9:44 AM EST), https://perma.cc/GSH7-UL6C (demonstrating that discussions of the debate reflect this absence of focus on criminal law).

239✕ U.S. Const. art. II, § 2, cl. 1.

240✕ Douglas Martin, Marc Rich, Financier and Famous Fugitive, Dies at 78, N.Y. Times (June 26, 2013), https://perma.cc/T8G8-N6QL.

241✕ Julie Hirschfeld Davis & Maggie Haberman, Trump Pardons Joe Arpaio, Who Became Face of Crackdown on Illegal Immigration, N.Y. Times (Aug. 25, 2017), https://perma.cc/8FG4-JRJX.

242✕ See Mark Osler, Holding Fourth on Fireworks and Presidential Timber, Waco Trib.-Herald (July 13, 2019), https://perma.cc/X3BB-67JC (conveying that, in fact, going to Iowa during primary season is a fascinating endeavor).

243✕ Peter Baker, Bush Made Willie Horton an Issue in 1988, and the Racial Scars Are Still Fresh, N.Y. Times (Dec. 3, 2018), https://perma.cc/2KDH-2589.

244✕ Id.

245✕ Nat’l Security PAC, Willie Horton 1988 Attack Ad, YOUTUBE (uploaded by llehman84 on Nov. 4, 2008), https://perma.cc/MJ8H-YCZU.

246✕ Rachel Withers, George H.W. Bush’s “Willie Horton” Ad Will Always Be the Reference Point for Dog-Whistle Racism, VOX (Dec. 1, 2018, 4:10 PM EST), https://perma.cc/T8RL-PTT9.

247✕ Id. (describing one part of a broader campaign involving Horton employed by Bush). See generally Paul Waldman, How George H.W. Bush Exploited Racism to Win the Oval Office, Wash. Post (Dec. 3, 2018, 4:24 PM EST), https://perma.cc/RB8Q-9TX9.

248✕ See Carl M. Cannon, Debunking the Willie Horton Ad Controversy, Real Clear Pol. (Dec. 9, 2018), https://perma.cc/P69B-AX2L (explaining that not everyone agrees that the Willie Horton ad was racist).

249✕ Paul Krugman, Racism Comes Out of the Closet, N.Y. Times (July 15, 2019), https://perma.cc/6X73-5YW2.

250✕ Ian Schwartz, Trump: Mexico Not Sending Us Their Best; Criminals, Drug Dealers and Rapists Are Crossing Border, Real Clear Pol. (June 16, 2015), https://perma.cc/7BJC-57XG.

251✕ See Susan Krauss Whitbourne, The Mindset That Makes It Hard to Admit You’re Wrong, Psychol. Today (Mar. 21, 2017), https://perma.cc/FFD7-47RN.

252✕ Lara Bazelon, The Innocence Deniers, Slate (Jan. 10, 2018), https://perma.cc/W6ME-JVV8; Ed Brayton, Why Prosecutors Rarely Admit Mistakes, Patheos, (Feb. 7, 2013), https://perma.cc/28JT-ZURQ.

253✕ John Pfaff, The Perverse Power of the Prosecutor, Democracy (Feb. 22, 2018, 5:53 PM), https://perma.cc/6XVG-BYT4.

254✕ Barkow, supra note 157, at 396.

255✕ See Julia Shumway, Prosecutors’ Honor Questioned as Criminal Justice Measures Die, Ariz. Cap. Times (June 14, 2019), https://perma.cc/4RFQ-9LLM.

256✕ Supra Part II(A)(3)(i).

257✕ Mission of the Ustr, Off. Of U.S. Trade Representative, https://perma.cc/SW3Q-NAWK (last visited June 5, 2021).

258✕ See Steven J. Hadley, The Role and Importance of the National Security Advisor, Texas A&M (Apr. 26, 2016), https://perma.cc/N3SP-C4WH.

259✕ Amy Klobuchar, On Criminal Justice Reform, It’s Time for a Second Step, Cnn (Apr. 5, 2019, 11:58 AM EDT), https://perma.cc/QJ4Y-KAFA.

260✕ Barkow, supra note 157, at 459.

261✕ See Barkow, supra note 157, at 459.

262✕ See Barkow, supra note 157, at 460.

263✕ Supra Part II(A)(3)(ii).

264✕ See Del Quentin Wilbur, Once Tough-on-Crime Prosecutors Now Push Progressive Reforms, L.A. Times (Aug. 5, 2019, 4:00 AM), https://perma.cc/W8QN-LYQC.

265✕ Amir Khafagy, How Tiffany Cabán Lost the Vote but Won the Fight in Queens, Jacobin (Aug. 15, 2019), https://perma.cc/7NR9-E488.

266✕ Matthew 25:36.

267✕ Mark Osler, Prosecuting Jesus: Finding Christ By Putting Him On Trial (2016) (My own work on the death penalty has been rooted in this idea, as I went to the most conservative Christian audiences I could find with an anti-death penalty message).

268✕ Doug Berman, Obama Hasn’t Reformed Criminal Justice—Could Romney Do Better?, DAILY BEAST (Apr. 13, 2012, 12:00 AM ET), https://perma.cc/WYC8-WMFV.

269✕ See supra Part I(A).

270✕ Elaine Kamarck, The Fragile Legacy of Barack Obama, Brookings Inst. (Apr. 6, 2018), https://perma.cc/SRC6-N5WQ.

271✕ Office of Pardon Attorney, Obama Administration Clemency Initiative, U.S. Dep’T Of Just., https://perma.cc/NCN9-Q59Z (last visited June 5, 2021).

272✕ Mark Osler, Fewer Hands, More Mercy: A Plea for a Better Federal Clemency System, 41 VT. L. REV. 465, 470–84 (2017).

273✕ John Fritze & Gregory Korte, Obama Clemency Program for Drug Offenders Snared by Infighting, Auditors Find, Usa Today (Aug. 1, 2018, 3:20 PM ET), https://perma.cc/7RUB-FC6R.

Mark Osler
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