Wednesday, August 7, 2013

Obama: Rhetoric v. Action

At Slate.Com, Douglas Berman and Harlan Protass pen what is surely one of the best pieces of its kind, entitled, Obama Can Fix the Race Gap in Sentencing Law A stroke of the pen can undo vast racial disparities in criminal sentences.

The piece observes that our nation’s first African-American president and first African-American attorney general "are aware of serious racial discrimination in the administration of our nation’s criminal laws," but pointedly asks: "What they plan to do about it?" Berman and Protass note:

Neither the president, nor his attorney general, has followed-up or suggested a fix for the problem. Yet with one signature, Obama could make a remarkable difference: He could use his constitutional powers to commute the sentences of thousands of disproportionately black inmates serving excessive prison terms for crack cocaine offenses. Put bluntly, rather than dropping occasional comments about high-profile criminal-justice incidents with racial overtones, both the president and the attorney general should make a focused and sustained effort to redress longstanding criminal justice disparities. 
The authors explain that, for decades, "federal law punished crack cocaine offenses more severely than comparable crimes involving powder cocaine" and, today, "roughly 30,000 federal inmates, representing approximately 15 percent of the entire federal prison population, are serving time for crack cocaine offenses." More than 80 percent of those men and women are African-American.

In 2010 however, Congress passed the Fair Sentencing Act to "significantly reduce the penalties for crack cocaine offenses." Its preamble "acknowledges the injustices" associated with the old law, but Congress did not make the new law retroactive. Consequently:
... more than 5,000 crack defendants who were among the least culpable of drug offenders—real men and women with real families—still languish behind bars serving excessively long mandatory prison terms imposed under a statutory scheme that’s been repealed largely because of its racially discriminatory impact. 
So what does the administration plan to do to ameliorate a continuing racial bias in our legal system?
... the simplest fix would be to start with the president. The Constitution expressly gives President Obama the power to secure justice for the thousands of inmates serving prison terms longer than they would receive if they committed their crimes today—sentence commutation. The president’s use of this broad and unlimited constitutional “power to grant reprieves and pardons” would correct a fundamental injustice. 
The piece then lowers a well-deserved boom:
Were the president to make significant use of his constitutional clemency power this way, it would powerfully demonstrate to advocates on both sides of the aisle that his administration is prepared to do more than just talk about the need for criminal justice reform. Especially at a time in which many prominent GOP elected officials at both the federal and state levels are championing the need to be “smart” and not just “tough” on crime, a bold move by the leader of the nation who is also the leader of the Democratic Party could be a big catalyst for the kind of broader reforms urged by criminal justice experts. Back in 2009, Holder famously described us as a “nation of cowards” in dealing with race issues. And while both Holder and the president seem to have the courage to speak about high-profile cases, they have yet to show the fortitude and focus needed to turn high-profile controversies into constructive opportunities. If President Obama is genuinely committed to addressing racial disparities in the enforcement of our criminal laws, he can grant clemency today, and then make a sustained commitment to addressing these issues throughout his second term. If he fails to do so, he can, justifiably, be called our nation’s “Coward-in-Chief” where race is concerned. 
See full piece at Slate here.

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