« Alabama Chief Justice laments mandatory LWOP drug sentence for 76-year-old offender | Main | Is the death penalty on "life support" or about to have a quickened pulse? »

September 14, 2015

"How Obama can use his clemency power to help reverse racism"

The title of this post is the headline of this provocative new MSNBC commentary authored Mark Osler and Nkechi Taifa. Here are excerpts:

In the remaining months of his second term, President Barack Obama has the chance to deliver justice for thousands of people given overly-harsh sentences for drug crimes.  The White House is probably now contemplating the next batch of clemency grants, which is expected in October.

It is likely that the vast majority of those whose sentences would be shortened will be African American. That is as it should be given that past laws and policies, as well as prosecutors and presidents, have tilted the criminal justice system disproportionately against them.

On average, blacks face unequal treatment at each stage of the criminal justice system. They are stopped and arrested more frequently than others; they are less likely to receive favorable terms on bail; and they are more likely to be victims of prosecutorial misconduct. Blacks are more likely to accept unfair plea bargains and be sentenced to rigid, lengthy mandatory minimums, or even death.  Race mattered when blacks were disproportionately targeted, imprisoned, and sentenced beyond the bounds of reason.  Race should also matter in providing relief via clemency today.

Despite the facially neutral nature of current laws that do not intentionally discriminate, disparate treatment is nevertheless sewn into the structural fabric of institutions, allowing bias to occur without direct action by a specific person.

Today’s racism is subtle and structurally embedded in many police departments, prosecutor offices, and courtrooms.  It is found in laws that look fair, but nevertheless have a racially discriminatory impact.  For example, from 1986 through 2010, the federal sentencing guidelines and the primary federal narcotics statute mandated the same sentence for five grams of crack as they did for 500 grams of powder cocaine....

Moreover, we know that even now prosecutors use the law unfairly to punish black defendants.  Writing in the Daily Beast, Jay Michaelson reports that 95% of elected prosecutors are white, and that those prosecutors disproportionately use mandatory minimum sentences to incarcerate black defendants for longer periods of time than similarly situated whites.  Again, there is seldom a “smoking gun” tying white prosecutors to specific acts of racism.  But there is a growing consensus that the system is flawed and structurally biased against blacks.

The number of African-Americans jailed under these laws and policies soared in the past few decades.  Yet previous presidents predominantly used their power to pardon to benefit high profile white men, including Vice President Dick Cheney’s former chief of staff, Scooter Libby, and Clinton donor and financier Marc Rich.  Indeed, President George W. Bush used the pardon power 200 times, but fewer than 16 of those were granted to black petitioners who have traditionally been unconnected to money, power and influence....

As the president’s clemency program accelerates over the 16 months remaining in his second and final term, we hope that he will look at the impact race has played in meting out unjust sentences.  We hope that he will broadly consider those who are worthy of a shortened sentence and a lengthened term of freedom and responsibility.  And we hope that among this group will be multitudes of eligible black men and women who will be able to be reunited with families and communities.  This does not reflect a racial bias.  It simply reflects the gut-wrenching reality of those disproportionately over-sentenced in the first place.

September 14, 2015 at 11:42 AM | Permalink

Comments

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB