Joni Mitchell’s line from Big Yellow Taxi “That you don''t know what you''ve got/’Till it''s gone” has been used quite often in the last weeks as President Barack Obama leaves the White House and an enigma moves in. I am actually grateful that this column was due on the eve of the inauguration as I am sure it would be an interesting event to write about. However, I would have missed the opportunity to reflect on what indeed we have lost with this transition.
I am nestled in a beautiful, wintery B.C. cabin. A day ago, I nervously journeyed on the back of a snowmobile along challenging, difficult but glorious mountain terrain and stopped at a silent, deep and vast snow-covered meadow. Standing there, I was filled with a sense of nostalgia, perhaps gratitude, and for some reason began thinking of President Obama. He was the first black president of the United States of America, an overwhelming achievement in the shadows of the Lincoln monument. But perhaps of much more importance he was — and is — a man of grace . . . decent, civil and compassionate. He leaves with his integrity intact. I think, actually, we do know what we’ve got before it’s gone.
For those of us who work in the criminal justice system, not only in the United States but in Canada, Barack Obama was a visionary. To borrow a phrase from another time, he has “passed the torch” that we as lawyers have a duty to keep lit, especially in what could be four years of disappointing reversals.
Barack Obama wrote in the January 2017 Harvard Law Review, Vol. 130 No. 3, an unprecedented commentary entitled The President’s Role in Advancing Criminal Justice Reform.
It is an astounding 54-page journey of insight. President Obama addresses almost every issue of concern today from poverty to mental illness, racism to innovative policing and incarceration to clemency.
Barack Obama’s commentary is a must read for our profession. The insights and thoughts he relates are translucent in familiarity to all who strive for a better criminal justice system. A few examples will illustrate:
“. . . prison records had been passed down from father to son for more than a generation.”
“. . . equal justice depends on individualized justice, and smart law enforcement demands it.”
“. . . we cannot deny the legacy of racism that continues to drive inequality in how the justice system is experienced by so many . . .”
“. . . our criminal justice system continues to too often serve as the default response for mental illness and addiction . . .”
The entire article is timely and demonstratively relevant in Canada.
We in this country have finally begun to examine the tragedy of solitary confinement in our prisons.
President Obama wrote:
“I believe strongly that solitary confinement is overused and can be counterproductive. Studies suggest it can have profound negative consequences exacerbating mental illness and undermining goals of rehabilitation.”
Canada is experiencing a rising crisis in opioid misuse. In addressing this issue for the United States, President Obama confronts the issue for all of us:
“Opioid use disorder or addiction to prescription pain relievers or heroin is a disease that touches too many of our communities, big and small, urban and rural, and devastates families all while straining the capacity of law enforcement and the health care system.”
Time and again over the last number of years, the courts in our country have sadly discovered that leaving science and experts unchallenged has resulted in tragedies and wrongful convictions. Barack Obama succinctly understands this problem:
“Contrary to the perception of TV dramas, forensic science disciplines are subject to varying degrees of uncertainty and misinterpretation.”
The Harvard Law Review Commentary is extraordinary in its message. What is also most impressive is that Barack Obama practised what he preached, especially in relation to the president’s clemency power. In the article, we discover this:
“ . . . the clemency power represents an important and underutilized tool for advancing reform.”
In echoes familiar to Canada, he wrote:
“The tough-on-crime rhetoric . . . and the political push for truth in sentencing . . . ushered in an era in which a power already in decline fell largely into disuse.”
President Obama commuted the sentences of more than 1,000 individuals, more than the previous 11 presidents combined.
This commentary is truly a remarkable window into an amazing man. It ends with this:
“How we treat those who have made mistakes speaks to who we are as a society and is a statement about our values — about our dedication to fairness, equality and justice, about how to protect our families and communities from harm, heal after loss and trauma and lift back up those among us who have earned a chance at redemption.”
Let this be the legacy of President Barack Obama that our profession embraces. No matter how difficult the terrain may be, he has shown us that a meadow of hopeful reform is out there.