A Whiff of Justice, a Taste of Civility

By Tammy Johnson Dec 12, 2007

“Race sort-of matters,” said the US Supreme Court with a 7-2 vote Monday. “No duh!” replied the US Sentencing Commission with unanimous agreement on Tuesday. It wasn’t that blatant, but just as the year comes to a close, our judicial system tipped-toed to the edge of racial justice. First, the US Supreme Court stated that federal judges would no longer have to consider the Congressional sentencing guidelines for crack/cocaine, as mandatory. The Kimbrough v. US decision dovetails a November 1st Sentencing Commission ruling that lowered these same guidelines. As if to reinforce the equity standard implied by the Kimbrough decision, the Commission then voted to allow 19,500 federal inmates with crack cocaine convictions, (86 percent of whom are Black) to pursue reduced sentences. There is good news, bad news, and a great deal of work to be done as a result of all of this activity. Good news: For the second time this year, the majority of the Court has acknowledged that race is an influential factor in public policy making. In the June Seattle and Louisville school desegregation cases, Justice Anthony Kennedy joined Stevens, Souter, Ginsburg and Breyer in supporting the idea that race can be a factor when it comes to government’s moral obligation to ensure equal opportunity for all children. While finding the two particular plans were unconstitutional, Kennedy, the swing vote, said race could still be used in narrow circumstances to ensure integrated schools. Through Kimbrough, racial disparities are again a factor. Justice Ruth Bader Ginsburg, writing for the majority, stated that, “In making the determination, the judge may consider the disparity between the guidelines’ treatment of crack and powder cocaine offenses.” Bad news: While the Court gave federal judges a measure of discretion handing out drug sentencing, without explicitly grounding the application of these rules in the principles of racial equity lives of people of color are still jeopardy. Federal judges may take sentencing disparities into consideration, but they don’t have to. This was an invitation, not a mandate. The harsh reality is that the Democratic Congress has done little to remedy the Federal sentencing laws, which means that federal judges can continue to act as if the sentencing guidelines are mandatory. Good news: Spin-doctors and media-wizards hold on to your knickers. This is a clear case where 1) public perceptions about race mattered; 2) advocates explicitly talked about racial disparities and provided solutions to the problem, and 3) won. The Court cited the 2003 Sentencing Commission report that stated that the crack/powder sentencing differential "fosters disrespect for and lack of confidence in the criminal justice system because of a ‘widely-held perception’ that it ‘promotes unwarranted disparity based on race.” Add to this the work of groups like the Sentencing Project, the Drug Policy Alliance Network, and others who put racial disparity front and center. Yes, you can make progress in policy development while leading with race. In fact, solutions that address fundamental problems that plague communities of color can rarely be addressed otherwise. Now what? This is the time to up the ante on our demands and force would-be policymakers to take a stand for racial justice. There are two things you can do right now. First, force Gubernatorial, Senatorial, and Presidential candidates running in 2008 to state their position on this issue. Will they appoint judges who will abide by the new sentencing directives? Will they create or empower current State Sentencing Commissions that will eliminate these and other disparities? Will they abolish three strikes laws? What will they do about immigration judges who are bound by strict minimums in deportation decisions? Second, support state and federal legislation that eliminates the crack/powder disparity and institutes other sentencing and criminal justice reforms. Demand a hearing of Representative Charles Rangel’s (D-NY) stalled Crack-Cocaine Equitable Sentencing Act of 2007. State legislators can take similar action. California’s State Representative Dymally, Mervyn M. (D-52) has repeatedly authored a Fairness in Sentencing Act, which can be duplicated in state houses across the country. Making this country a true haven of liberty and justice means having a vision where racial justice is a value that drives public discourse and policymaking. That is why being race-conscious is so very important. Only by confronting the issue of race head on, will we be able to begin to address the centuries of harm done by and to our nation. Being race-conscious is not about assigning blame. It’s about crafting solutions that make sense and that create a civil society.