Monday, May 22, 2017

The Reach of Our Mercy by James Forman Jr.

Marijuana decriminalization is an important victory. Sandra Dozier, who lost her job at FedEx when she was arrested after a pretext (‘stop and frisk’) traffic stop with $20 worth of marijuana in her glove compartment, can attest to why it matters. So can thousands of others. But the victory is also a cautionary tale about the limits of recent criminal justice reform efforts.

First, as a percentage of our nation’s incarcerated population, those possessing small amounts of marijuana barely register. For every ten thousand people behind bars in America, only six are there because of marijuana possession. A greater concern is that criminal justice reformers increasingly separation “non-violent drug offenders”  including those convicted of marijuana possession- from “violent criminals.”* In this view, nonviolent drug offenders are worthy of compassion and a chance to redeem themselves; violent offenders, by contrast, deserve what they get.

During his second term President Barack Obama became the most prominent proponent of what we might call nonviolent-offenders. In 2015, Obama outlined his final criminal justice reform agenda in a widely anticipated speech to the NAACP’s annual convention. He divided the world of criminal defendants into two groups. First, there are the nonviolent drug offenders, whose incarceration, the president said, is the real reason our prison population is so high.” Obama argued that the current system punishes these offenders too severely: “If you’re a low-level drug dealer, or you violate your parole, you owe some debt to society. But you don’t owe twenty years. You don’t owe a life sentence.”

Obama contrasted the nonviolent offenders with another group: “violent criminals,” who, he said, “need to be in jail.” Who are these people? “Murders, predators, rapists, gang leaders, drug kingpins – we need some of those folks behind bars.” In the press conference the next day, explaining why his efforts to reduce mandatory minimum sentences was limited to “nonviolent drug offenses,” Obama remarked, “I tend not to have a lot of sympathy when it comes to violent crime.”

Obama’s choice to limit criminal justice reform to low-level, nonviolent drug offenders is a common one among elected officials – including African-American elected officials. At the federal level, black members of the House of Representatives rallied around the Sentencing Reform Act of 2015, whose stated goal was to reduce mandatory minimums for certain low-level drug offenders while “ensuring that serious violent felons do not get out early.” At the state and local level, African American prosecutors such as California’s Kamala Harris, Baltimore’s Marilyn Mosby, and Philadelphia’s Seth Williams all built reform around nonviolent criminals. Defenders of this approach to reform are sometimes silent about who is being left opt. Other times they enlist violent offenders as a bogeyman, suggesting that leniency for nonviolent offenders will create space to lock up the violent ones for longer. As Representative Marcia Fudge of Ohio said, “Our current system severely punishes nonviolent offenders while granting violent criminals freedom and unfettered opportunities to menace our communities.” The nonviolent-offenders-only perspective is understandable, and broadly popular. But basing criminal justice reform on leniency for nonviolent drug offenders reinforces a deeply problematic narrative.

First, consider the numbers. America’s incarceration rates for nonviolent drug offenders are unprecedented and morally outrageous, but they are not “the real reason our prison population is so high.” Roughly 20 percent of America’s  prisoners are in prison on drug charges. As a result, even if we decided today to unlock the prison door of every single American behind bars on a drug offense, tomorrow morning we’d wake up to a country that still had the world’s largest prison population.

And to be clear, when advocates speak of “non-violent drug offenders” they are not talking about all, or even most, of the five hundred thousand incarcerated on drug offenses. As we saw in chapter 5, the drug trade –especially during the crack era- was extraordinarily violent. Some of the people involved had no connection to violence, but it wasn’t easy –pacifists didn’t survive for long. In arguing for mercy and compassion for nonviolent drug offenders, and only for them, advocates are pursuing an approach that excludes not just the majority of offenders, but even a majority of incarcerated drug offenders.

The narrow scope of this style of reform was confirmed b the Department of Justice’s 2014 clemency initiative. Attorney General Eric Holder** made headlines when he announced that the Justice Department would consider recommending that the president commute some of the extraordinary long sentences given to people convicted of drug crimes, mostly from the late 1980s and 1990s. Holder’s initiative was welcome news –the sentences it would target were indeed much too long, and because crack offenses were penalized more harshly than powder cocaine offenses, African Americans suffered the most. But the guidelines were quite restricted. Eligibility was limited to federal prisoners who had already served 10 years, had no significant criminal history, were ‘nonviolent low-level” offenders, and had “no history of violence prior to  or during their current term of imprisonment.” In excluding anybody with a history of violence, the Justice Department rendered most federal prisoners ineligible for clemency.

Defenders of the non-violent-offenders-only approach suggest that it is just a start. Reform must begin with nonviolent offenders, they say, but others might benefit later. President Obama’s senior adviser, Valerie Jarret, suggested as much when, in 2016, she told NPR, “if we can begin with nonviolent  drug offenders, it’s an important first step. It doesn’t mean that we wouldn’t come back if research indicated that we should tailor other parts of our judicial system. But let’s start with where we have consensus and move forward and not let the perfect be the enemy of the good.”

I am sympathetic to this perspective – and not only because of the political realities Jarret cites. I have described mass incarceration as the result of a series of small decisions, made over time, by a disparate group of actors ( and driven by popular demand in white and African-American communities). If that is correct, mass incarceration will likely have to be undone in the same way. So it makes sense for advocates to start with the least culpable or threatening individuals.

But criminal justice reform’s first step could easily become its last. To see how, look no further than the president’s own language. When Obama declared that he has “no sympathy” or “no tolerance”: for those who have committed violent offenses, he effectively marked this larger group of violent offenders as permanently out-of-bounds. Such talk draws no distinction and admits no exceptions. It allows for no individual consideration of the violent offense. The context, the story, the mitigating factors- none of it matters. Any act of violence in your past casts you as undeserving forever.

Obama should have understood the flaw in this approach. He frequently cited The Wire, David Simon’s account of the crack years in Baltimore, as one of his favorite television shows, and in 2015 he invited Simon to the White House to discuss criminal justice issues. But The Wire would seem an odd choice for a president espousing the nonviolent-offenders-only approach to reform. Other than Bubbles the heroin addict, none of the show’s main characters would have been eligible for clemency under the Department of Justices guidelines. Yet despite the show’s rampant violence, most viewers, including apparently Obama himself, don’t think of the show as being primarily about a bunch of ruthless thugs. Why not? Because their violent acts are not the only thing we know about them. We know them fully, as people, not just by their charge sheets or criminal records. Obama said as much, telling Simon, “But part of the challenge of criminal justice reform is going to be making sure, number one, that we humanize what so often on the local news is just a bunch of shadowy characters, and tell their stories. And that’s where you’re the work you’ve done has been so important.”

Just so. And other defenders of the nonviolent-offenders- only approach would do well to remember the point.  People who have committed a violent offense make up 53 percent of the nation’s state prisoners and of those, more are incarcerated for robbery than any other. But the labeling “violent offender,” tossed out to describe a shadowy group for whom we are supposed to have no sympathy, encourages us to overlook their individual stories. It encourages us to separate those other people – the ones who did something violent, the ones who belong in cages – from the rest of us. It leads us, as Bryan Anderson has written , to define people by the worse thing they have ever done. *** And it ensures that we will never get close to resolving the human rights crisis that is 2.2 million Americans behind bars.

* this was a distinction rarely made  during the height of the anti-drug crusade in D.C.  City officials, Police and journalists had similar views, as Juan Williams wrote in the Washington Post, they saw the drug trade’s occupation of public space as a form of violence in itself. Dealers and users were seen as directly responsible for crimes like murder, rape, robbery and felonious assault. Jessie Jackson equated drug dealers with Klansman- “No one has the right to kill our children”- besides calling them traitors to their race. The distinction was practically unthinkable in the 70s, 80s and 90s.

**As  U.S. Attorney for the District of Columbia Holder initiated Operation Ceasefire which stopped cars, searched cars and seized guns- the motor equivalent of ‘Stop and Frisk.” Any pretext was sufficient to  stop and search cars. About  1 out of twenty to 1 out of 100 hundred stop and searches (not conducted in predominantly white neighborhoods and rarely in affluent black neighborhoods) found guns, but lots of people ended up getting bust for possession of drugs, and other offices.  Operation Ceasefire sent plenty of poor blacks to jail and ruined their chances for work but didn’t reduce gun violence in D.C.

***Byron Stevenson, Just Mercy: A Story of Justice and Redemption, 2014

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