Rachel Barkow delivers inaugural chair lecture on criminal justice as a regulatory system

Delivering the inaugural lecture of the Segal Family Professorship of Regulatory Law and Policy on November 4, Rachel Barkow, who holds that chair title, made a vigorous case for criminal justice reforms in her talk, “Criminal Law as Regulation.”

Dean Trevor Morrison, Rachel Barkow, and Mikhail SegalBarkow, a leading administrative and criminal law scholar, first gratefully acknowledged Mikhail Segal, chairman of LS Power Group, who endowed her chair. She then launched into her argument that the criminal justice system is a regulatory system and, as such, criminal justice can be improved by applying what we know about regulation.

Too much about today's criminal justice system is driven by the emotions provoked by individual acts, Barkow contended. “The punchline for Law & Order and everything else you hear about criminal law in the United States is ‘These are their stories,’” said Barkow. “It’s just one tragic story after another, and they don’t just drive the news and our popular culture; they drive our policymaking.”

Barkow recalled the example of Willie Horton, a convicted murderer in Massachusetts who escaped while on weekend furlough to commit further violent crimes. George H. W. Bush invoked Horton during the 1988 presidential campaign as a stain on the record of Massachusetts governor Michael Dukakis, who lost the election.

“You can agree or disagree that this particular furlough program was a good idea, but when the ads came out the program was never really analyzed beyond the Horton story,” she said, mentioning that 99.5 percent of those furloughed did not escape.

Barkow pointed out an absolutism in the regulation of criminal behavior that does not exist in other forms of regulation. “It’s essentially zero tolerance for any risk,” she said. “One story, and politicians are willing to take an entire program down without considering whether the program, on net, brings more benefits than it has costs and whether it reduces risks overall. So the end result is we don’t have a rational discussion about whether, on balance, a particular program is a good idea…. We don’t approach any other area of government regulation this way.” She mentioned risks associated with vaccines, environmental policy, occupational safety and health, and financial instruments as cases in point, adding that part of the problem was that more people identify with the stories of victims than with the more complicated and less sympathetic backgrounds of offenders.

The collateral consequences of convictions do not typically undergo rigorous analysis, Barkow said, whether the burdens fell on those convicted or criminal justice officials with limited resources attempting to run a system with ever-higher levels of incarceration and supervision. Meanwhile, she asserted, preventative measures such as early childhood education garner far less enthusiasm than stiffer sentences do.

With at least 95 percent of convictions occurring outside of a trial, police departments, prosecutors, sentencing commissions, corrections departments, and judges wield enormous power in a massive regulatory system with little in the way of checks and oversight, Barkow argued.

“Like any other regulatory system, these are vested and powerful regulators,” she said, “and they might fail to appreciate that there are tradeoffs and downsides when they pursue their goals…. But if you realize that this is a sweeping regulatory system, then I hope you’ll see that there’s a body of knowledge about regulatory structures that I think can really improve the way that system operates.”

Barkow gave the example of how the federal system handles clemency as an example of a highly bureaucratized and broken process. While clemency is enshrined in Article II of the Constitution as a core executive power, she said, presidential exercise of the right is sparing at best. In fact, President Obama has granted fewer pardons and commutations in his first term than any president who has served a full four years since John Adams.

This low clemency rate was not due to fewer worthy requests, Barkow suggested, nor did the Willie Horton effect fully explain it. She pointed to a more intrinsic problem: the process’s institutional design. The Department of Justice, as the agency that both prosecutes a case and then receives a subsequent request for clemency in the same case, has an inherent conflict of interest, she said. “Every request for clemency is at some level a criticism of the decision to prosecute in the first place.” George W. Bush is reported to have asked for more favorable clemency recommendations to consider, but he never received them and deemed the process broken.

It remains to be seen whether Obama will make sweeping changes to the clemency process. Barkow advocated a proposal made by former White House counsel Greg Craig, in which an independent commission of key stakeholders independent of the Justice Department would make pardon recommendations to the president. She also stressed the need for data on the benefits of pardons and commutations in terms of more successful reentry, reduced recidivism, and cost savings.

“A good regulator should try to maximize the lives saved, recognizing risk is everywhere and that the best we can do is engage in tradeoffs to limit as much risk as is justified by the costs,” she said, adding, “The key is, will our decisions be better or will they be worse with this information?... We need to look at these issues with a new framework and not be misled into thinking it’s no more sophisticated than a story.”

Watch the full video of the event (1 hr, 4 min):

Posted on November 11, 2013