In recognition of the extent to which outdated laws and sentencing measures have disproportionately impacted African Americans, the Justice Department recently announced new clemency guidelines designed to commute the sentences of eligible inmates. Eligibility depends on a variety of factors: prisoners must be low-level, non-violent offenders with no ties to organized crime, and no significant criminal history other than the charge for which they were convicted. Additionally, they must have been convicted under laws that have since been modified to include shorter sentences, and they must have served at least 10 years of their sentence with good conduct. Approximately 2,000 of the more than 200,000 inmates in the federal prison system may qualify under these terms.
Though not limited specifically to black drug offenders, the initiative represents an important step in addressing the racial disparities in sentencing that emerged as a result of laws based on the long-held and mistaken assumption that crack-cocaine (typically used by low-income individuals) is more dangerous than powder cocaine (typically used by whites and more affluent individuals).
Yet it is important to remain mindful of the fact that racial disparities in the justice system emerge long before sentences are doled out.
According to the most recent data from Minnesota’s Bureau of Criminal Apprehension, in 2012, Native Americans made up about 5% of all arrests, while representing only 1.3% of the population, and blacks made up about 27% of all arrests, while representing only 5.5% of the state’s population. Individuals from these groups were arrested at rates close to 4 and 5 times higher than their prevalence within the population, respectively. Conversely, whites were arrested at a lower rate than their prevalence within the population; in 2012, they made up about 66% of all arrests, despite comprising 86.5% of the state’s population. Asians were also arrested at a lower rate (they comprised close to 3% of arrests while constituting 4.5% of the 2012 population).
A variety of factors may be at play in producing racial disparities in arrests, but a greater disparity in arrests often indicates “unusually high rates of socioeconomic disparity between black and white residents.” Addressing Minnesota’s significant socio-economic racial disparities, in combination with greater transparency from law enforcement agencies regarding searches and arrests and better training to reduce racial bias in policing, is critical to reducing disproportionate arrest rates.
This in turn would help to prevent the kinds of racial disparities in incarceration for which the new clemency initiative has been designed. Yes, granting clemency to low-level, non-violent offenders will help to mitigate existing racial disparities in incarceration rates, but we must work toward preventing such disparities in the first place. In fact, we should work toward keeping low-level, non-violent drug offenders out of the criminal justice system altogether: namely, diverting drug users to hospitals, shelters, and treatment facilities instead of arresting them and sending them to criminal court would far more effectively meet their needs.