For those of us old enough to remember a world before Trump, the beatification of some former federal prosecutors, Preet Bharara and Sally Yates, by the left was about as goofy as it got. Sure, they were fired by Trump, but did these dopes have a clue who they were, what they did, before Trump? Apparently not, as they neither knew nor cared that there was a world preceding the apocalypse. But more importantly, Preet, Sally, et al., said the words the unduly passionate so desperately wanted to hear. Bad Trump. They swooned with adoration.

When Biden was elected and it was his time to give AG Bill Barr’s chair to someone new, Joe could have picked one of these former prosecutors who now made a living off telling Rachel Madow what her fans wanted to hear, but he did them one better. He chose the most maligned judge in America, Merrick Garland, from whom a Supreme Court seat had been stolen. Surely, he must be the most woke choice possible, since he was the victimiest victim in law.

Then again, for those of us who were sentient BT, and saw the gambit when Obama nominated Garland (who was wrongly, though not unlawfully, denied his chance at confirmation), we knew the hero of victimhood was no wokester, any more than Preet or Sally. For those who believed with the passion of a million burning suns that Garland would “reimagine” the Department of Justice, it didn’t take long to realize they got a pretty normal attorney general. He’s better than Barr, of course, but he’s a long way from the activist reformer some hoped he would be.

In the first edition of Inquest, a new anti-mass-incarceration site,* Lawprofs Rachel Barkow and Mark Osler take the wind out of the reformers’ sails with an assertion that flies in the face of their strategy over the past four years to seize district attorneys offices and replace tough-on-crime prosecutors with progressive prosecutors. They say it won’t work at Justice.

If there is one tragic constant about the Justice Department, no matter which administration is in power, it is this: DOJ is bold in the easy job of locking people up and timid in the more difficult task of crafting alternatives to brute-force incarceration. Consistently, DOJ fights common-sense reform, maintains a stranglehold on access to the rusted levers of change, and resists second-guessing its decisions. Asking DOJ to do better has not worked, no matter who has occupied the top appointed positions there. It is not a question of getting the right people in place in positions of power. It is, instead, a fundamental issue of institutional failure that requires fundamental institutional reform.

It’s unclear why putting the right people in place won’t work. Too many heads have to be changed? Too many policies and practices work against change? Too many of the permanent staff are so prosecutorial at heart that they cannot change?

When you put DOJ in charge of criminal-law reform — of whatever type — you are putting prosecutors in charge. So the first question you have to ask is whether prosecutors will be good at the tasks you are asking them to accomplish. If you are asking them to roll back tough sentences or limit their own authority, it is easy to understand why prosecutors will struggle to be objective. The profession draws those who are inclined in favor of law enforcement, of course, but that isn’t the whole of it. There is also a certain emotional commitment that comes from seeking convictions and sentences — and a very real moral cost for having been wrong. There is also a distance between prosecutors and the people whose lives they are affecting.

To be fair, the job of the criminal division of DoJ is to prosecute, not reform. Granted, they need not be so harsh and inflexible, so blindly carceral in their approach to the job of “doing justice,” a vague and aspirational ideal that more easily said than done. But as Barkow and Osler note, and backup with statistics, the DoJ has proven no less married to its carceral mindset under Biden than it was under Trump, Obama before him, and, well, always. It’s just not the institution to take the side of ratcheting down excessive sentences, granted compassionate release, leaving the home confined at home and giving clemency to those whose continued incarceration can’t be rationally justified. So they propose an alternative.

To get to real justice, we have to stop depending on the department bearing that name. Instead, compassionate release should just go to judges, and clemency handled by an independent board. The Bureau of Prisons could even be transferred to the Department of Health and Human Services. There should also be a cabinet or sub-cabinet-level independent advisor on criminal justice who is not tied to DOJ, just as there is a national security advisor outside of the national security apparatus.

In other words, let DoJ continue with those aspects of the job it seems to relish, prosecuting people, and strip it of those functions that aren’t at the core of its function and which it just can’t seem to approach in any other way than as prosecutors. Yes, the reformers have gotten their way, at least to some extent and for the time being, by taking advantage of the general disinterest in local district attorneys in shifting the focus toward reforms which may or may not pan out the way they expect, but resistance at Main Justice, not to mention the district offices of United States Attorneys, seems unbreakable.**

These functions of mercy, compassion and reason ended up at DoJ because it was there, not because it was the right place for them to be best carried out or that prosecutors were the best people to be in charge of these functions. Barkow and Osler have a very good point, that they should be in separate hands from prosecutors (and I personally think Rachel Barkow would be perfect as Biden’s clemency Czar) and freed from those whose carceral views make them incapable of reforming what is really the anti-prosecutorial function of federal justice.

*The Founders of Inquest include my former Fault Lines colleague, Cristian Farias, together with Andrew Crespo and Premal Dharia.

**Notably, there are exceptions, such as Vanita Gupta and Kristen Clarke, both of whom are bent on bending the civil rights piece of DoJ to their ideological agenda at the expense of law and the Constitution. But OCR is separate from the criminal function, and seems to be Biden’s throwaway to buy peace with his party’s fringe left.