We know Amy Klobuchar can handle a snowstorm. Now let’s see if she can weather storms of a different type: like the criticism of those who believe she cannot credibly argue for criminal justice reform because of her record as a prosecutor.
Just as preparation is key to facing a Minnesota winter, an early and clear definition of what Klobuchar would do as president to transform criminal law could be one key to her success.
As Klobuchar merges into the center lane of a raceway crowded with candidates, she has probably already noticed the dents to Kamala Harris’ campaign. Harris made the mistake of looking backward rather than forward. She declared herself to have been a “progressive prosecutor” as a district attorney and attorney general in California, and was quickly and heatedly reminded of her decidedly mixed record in those jobs.
Klobuchar, who is also a former prosecutor, has not made that misstep. Instead, she has hardly mentioned criminal law at all. In her announcement speech (which I watched among the huddled masses on Boom Island in Minneapolis), she lightly glanced on the subject, saying “I always believe in doing my job without fear or favor. That’s what I do as a senator and that’s what I did as a prosecutor. And that means not only convicting the guilty but protecting the innocent. That’s why I have and why I will always continue to advocate for criminal justice reform.”
Klobuchar’s statement might be read to imply that criminal justice reform is about protecting the innocent, but that is only a small part of it. The meat of reform is going to be found in reducing incarceration rates, changing policing practices and re-thinking myriad other issues, including bail policy in the thousands of jurisdictions across the country. It’s complicated.
The fact that it is complicated, though, does not mean it can’t be addressed. In fact, it must be addressed by any candidate who seriously wants the support of Democrats in the primaries. There is a way for Klobuchar to present her knowledge of criminal law as a strength when paired with a genuine commitment to reform.
Klobuchar needs to insist on looking forward at what she proposes rather than backward at what she did as the Hennepin County attorney. Yes, she can and should recognize that her experience as a prosecutor gives her unequaled expertise in criminal law among the Democratic field (with the possible exception of Harris). But she needs to pair that recognition with the plain fact that things have changed since she served Hennepin County from 1998-2006.
Many of the new initiatives on the agenda of reformers have built on successes over the past decade in states that have lowered incarceration rates while simultaneously lowering crime rates. “Lock-’em-up” justice is properly being rejected based on data, not politics. Twelve years ago is a long time, and the idea of a “progressive prosecutor” as we now talk of it did not really exist until the recent election of a handful of DA’s including Kim Foxx in Chicago and Larry Krasner in Philadelphia. There is room for Klobuchar to lead in this current reality.
When she does talk about criminal justice, Klobuchar should focus on the important but limited role a president plays. The overwhelming majority of criminal cases unfold in state courts. The federal government does influence state policies through partnerships and funding, and that lever should be used to push for changes in discrete areas such as bail reform. Still, it is within her own administration that Klobuchar would have the most influence, and it is there that she could make the most difference.
First, she could go far toward achieving reforms if she removed the Department of Justice from its current role as the only institutional adviser to the president on criminal justice. The DOJ is inherently conflicted, since nearly any reform is to some degree a rebuke of its current practices. We shouldn’t be surprised at its consistent resistance to even the most basic changes. Klobuchar should commit to creating an advisory body within the White House, drawing on experts from a variety of backgrounds.
In other fields (intelligence, the economy and the environment, for example), the president employs independent advisers who stand apart from the agencies that implement policy. The same should be done with criminal law.
Second, Klobuchar can and should commit to a much broader diversity in appointing judges and high officials in the Department of Justice. Of course, that commitment must embrace the currently neglected need for far more minorities and women in those positions. But it should also seek greater diversity of vocational background.
Right now, 43 percent of federal judges are former prosecutors, while only 10 percent served as public defenders, a disparity that matters in the way justice is dispensed.
Finally, Klobuchar can reform the federal clemency process. Currently, petitions for clemency (unless they are the subject of intercession by Fox News or a Kardashian) go through a tortuous process that includes seven levels of sequential review, much of it mired in the hopelessly conflicted DOJ. That stymies the pardon power that the framers of the Constitution intentionally put in the hands of the president.
The past may be prologue, but it is not determinative. The Civil Rights Act of 1964 was signed by a white president (Lyndon Johnson) from a former slave state, and the first female justice of the Supreme Court, Sandra Day O’Connor, was appointed by a president (Ronald Reagan) who had been fiercely opposed by feminist groups.
Leaders, at their best, are more than the sum of their own pasts. Amy Klobuchar may become that kind of leader.
Mark Osler is the Robert and Marion Short professor of law at the University of St. Thomas and a former federal prosecutor.