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.
"There is a growing consensus that the system is flawed and structurally biased against blacks."'
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.
That bizarre and arbitrary rule meant that it wasn’t white people who imported powder cocaine into the country who got slammed, or white people who distributed it through the U.S., or even the whites who sold powder within a city. No, it was predominately blacks who cooked the powder into crack at the bottom of this chain and sold it on the street who suffered the harsh sentence demanded by this upside-down math.
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.
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None of this is an abstraction to us. With the support of the Open Society Foundations and New York University Law School's Center on the Administration of Criminal Law, we have worked with others to establish the Clemency Resource Center, a pop-up organization that employs seven full-time attorneys to prepare petitions on a pro bono basis for worthy clemency seekers, many of whom suffered from a biased system of justice. In looking at these cases, the racial disparities built into the system cease to exist as a theory and become names and faces and families torn apart, black lives that matter.
Which leaves us with the task before Obama, who has reinvigorated the policy discussion around widespread incarceration and the proper role the executive can play to alleviate harsh punishments via clemency. He has announced his intention to commute sentences more vigorously than his predecessors, and has begun to act on that intention.
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.
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People have drawn different lessons from the sad truths revealed in places like Ferguson, Staten Island, and North Charleston, but one truth is indisputable: Race has always mattered in criminal justice. Clemency is a constitutional tool to address those harms, and it is the one most firmly in the grasp of this, or any, president.
Nkechi Taifa is the senior policy analyst for civil and criminal justice reform at the Open Society Foundations in Washington, D.C. Mark Osler, a former federal prosecutor, holds the Robert and Marion Short Distinguished Chair in Law at the University of St. Thomas.