Professor Kate Shaw’s Texas Law Review article Beyond the Bully Pulpit won the American Constitution Society’s Cudahy Award on Regulatory and Administrative Law. Seventh Circuit Judge David Hamilton presented her paper at the ACS National Convention in early June. Congratulations to Professor Shaw!
A stroke of the pen can undo vast racial disparities in criminal sentences.
July 29, 2013 Slate - President Barack Obama, commenting last week on George Zimmerman’s acquittal in Trayvon Martin’s death, remarked on “a history of racial disparities in the application of our criminal laws—everything from the death penalty to enforcement of our drug laws.” A few months earlier, Attorney General Eric Holder similarly lamented new government data suggesting that even today “black male offenders” are sentenced to federal prison terms “nearly 20 percent longer than those imposed on white males convicted of similar crimes.” These statements reveal 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. The question is what they plan to do about it?
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 disparity between crack and powder cocaine sentencing has been the most notorious example of profound racial bias baked into our superficially neutral criminal laws. For decades, federal law punished crack cocaine offenses more severely than comparable crimes involving powder cocaine. As a result, strict federal sentencing laws enacted during the height of a perceived “crack epidemic” hammered those who dealt in even tiny amounts of crack with five- and 10-year mandatory minimum prison terms.
Today, roughly 30,000 federal inmates, representing approximately 15 percent of the entire federal prison population, are serving time for crack cocaine offenses. And more than 80 percent of those men and women are African-American.
In 2010, recognizing the racial bias reflected in these drug laws and the profound impact they had on African-American offenders and communities, Congress passed the Fair Sentencing Act to significantly reduce the penalties for crack cocaine offenses. The new law’s preamble acknowledges the injustices associated with the now-rescinded sentencing laws, and states that it is designed “to restore fairness to Federal cocaine sentencing.”
Congress, however, did not make the new law retroactive. So it does not formally apply to those convicted and sentenced before the date it was signed into law, although, somewhat ironically, the U.S. Sentencing Commission—the federal agency responsible for developing fair sentencing guidelines—was permitted to make its guidelines retroactive in a way that could help some of the more serious crack offenders serving the longest sentencing terms under the old law. 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.
Federal courts have been powerless to provide relief because Congress never expressly authorized them to do so. Recently, one divided panel of the U.S. Court of Appeals for the 6th Circuit found a way to correct that. While conceding that Congress had no discriminatory intent when it passed the original crack laws, those judges said that they could not ignore their real world impact in applying the new act. For example, they noted that from 1988 to 1995 not a single white person was charged with crack-related crimes in 17 states, including major cities such as Boston, Denver, Chicago, Miami, Dallas, and Los Angeles. The panel further observed that in 2010, before passage of the Fair Sentencing Act, almost 4,000 defendants, mostly African-American, received mandatory minimum sentences for crack crimes.
The court thus concluded that, because of the racial bias endemic to the now-repealed laws, the Constitution’s commitment to equal protection of the laws required application of the new law to old cases, even if the statute didn’t authorize it. The appeals court even went so far as to say that like “slavery and Jim Crow laws, the intentional maintenance of discriminatory sentences” violates the U.S. Constitution. Disappointingly, the Obama administration appealed that ruling to all of the judges of the 6th Circuit, and experts predict that the more conservative judges on that court will reject the “equal protection” theory upon which retroactive application of the Fair Sentencing Act is based.
So what does the administration plan to do to ameliorate a continuing racial bias in our legal system? A new ground-breaking report emerging from a conference of distinguished criminal justice experts provides a working blueprint for how to overcome persistent racial and ethnic disparities in America’s criminal justice system. But 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. After all, what’s appropriate for today’s crack offender is surely appropriate for yesterday’s offender as well. Don’t forget that when the now-rejected laws were first adopted in the late 1980s, Congress believed crack was instantly addicting. Lawmakers feared a generation of “crack babies” would plague the nation for years to come, and perceived direct links between crack use and violent crime.
But now we know that legislators had their facts wrong. As the Sentencing Commission reported to Congress, crack is pharmacologically indistinguishable from, and produces harms no more severe than, powder cocaine, even to the unborn. The Sentencing Commission’s research also shows that crack’s use never reached anticipated epidemic proportions and that its consumption bears no higher correlation to violent crime than do other drugs. What’s more, the objective of the now-repealed laws—targeting high-level drug traffickers—largely failed. The majority of crack offenders still doing time today were low level street dealers, couriers, and lookouts.
Sentence commutations also would ameliorate the growing and costly problem of prison overcrowding. The Justice Department warned the Sentencing Commission earlier this month of a budgetary crisis looming as a result of the growing federal prison population. The report added that policymakers were confronted with a stark choice: Either “reduce the prison population and prison spending” or be prepared for “fewer prosecutors to bring charges, fewer agents to investigate federal crimes, less support to state and local criminal justice partners, less support for treatment, prevention and intervention programs, and cuts along a range of other criminal justice priorities.”
And commutations would rehabilitate Obama’s record of exercising his pardon and commutation power less frequently than any president in modern history. 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.