Alan Jenkins is Executive Director of The Opportunity Agenda, a communications, research, and advocacy organization dedicated to building the national will to expand opportunity in America. He is co-editor, with Brian D. Smedley, of All Things Being Equal: Instigating Opportunity in an Inequitable Time from the New Press.
Every once in a while, our country learns from experience in ways that return us to our basic values. That seems to be happening in key aspects of our criminal justice system. We are learning that investing in redemption and rehabilitation over retribution and endless incarceration is the smart thing to do as well as the right thing to do. And we are seeing that equal justice is not just the absence of intentional discrimination but the presence of fairness.
The signs have been building for some time now, but the convergence of events over the last two weeks has been remarkable. We saw the U.S. Supreme Court and the U.S. Sentencing Commission each choose greater fairness over irrationality when it comes to cocaine offenses, while the state of New Jersey took the momentous step of abolishing the death penalty.
The U.S. Supreme Court ruled, 7-2 in a pair of decisions, that federal judges have the power to tailor sentences to the facts and circumstances of each case, notwithstanding rigid sentencing guidelines that might call for longer or shorter sentences. One of those cases was especially important because it chipped away at the illogical and racially tinged disparity between sentences for crack and powder cocaine.
As Justice Ginsburg noted in her opinion for the Court last week, crack and powder cocaine are similar in terms of chemical make-up and harmfulness. But based on faulty evidence and the political and media frenzy surrounding crack in the 1980s, Congress created a sentencing scheme in which a defendant caught with 50 grams of cocaine in the form of crack faced the same penalty as one caught with 5,000 grams of powder cocaine. That mistake was made worse by the federal sentencing guidelines which further constrained judges' discretion. The scheme was not just irrational, but racially unjust; whites have been much more likely to be convicted for powder cocaine while African Americans have been more likely to be convicted for crack, creating vast and unjustified racial disparities.
The Supreme Court ruled last week that reducing the injustice wrought by the guidelines is among the legitimate reasons why a trial judge may depart downward from a guidelines sentence. The next day, the U.S. Sentencing Commission voted unanimously to make retroactive a change in the guidelines for crack and powder sentences that could reduce prison time for 20,000 people currently in federal prison. The Commission called its action "only a partial step in mitigating the unwarranted sentencing disparity" between powder and crack sentences, urging Congress "to address the issue of the 100-to-1 statutory ratio that drives Federal cocaine sentencing policy."
This week, Governor Jon Corzine signed a bill that will make New Jersey the first state to repeal the death penalty since the U.S. Supreme Court declared execution constitutional in 1976. "I think we have an opportunity today to change the course on this very important issue," said Christopher Bateman, a Republican Assemblyman from Somerville, NJ. "We need to put politics aside."
Together, these decisions reflect decades of difficult lessons: about the folly of locking away people convicted of low-level, non-violent offenses for decades; about how seemingly neutral policies can have gravely discriminatory effects; and about the ineffectual, discriminatory and dangerously inaccurate nature of the death penalty.
But information alone rarely leads to policy change, especially when it comes to criminal justice policy. That political leaders could even consider these changes in an election year speaks to a shift in public values as well as public understanding. Each reform reflects a return to the values of redemption and equality that are essential to a fair and effective criminal justice system, and that polls and politics show are on the rise in our country.
Redemption is the idea that every human being has value and the potential to grow and change over time. Equality is the belief that what you look like, where you come from, or how much money you make should not determine your rights or responsibilities in society, especially when it comes to our justice system.
The idea of redemption cuts across ideologies, parties, and faiths. Its proponents include Chuck Colson's Prison Fellowship and the American Civil Liberties Union. It is a value held by virtually all of the world's religions, which recognize the limitless potential for human improvement and change. It is reflected in our Constitution, which requires proportional treatment of misconduct. And it is embodied in universal human rights principles like the International Covenant on Civil and Political Rights, which provides that "the penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation."
"Equal Justice Under Law" also has deep roots in our justice system. It is a cornerstone of our Constitution and the inscription above our Supreme Court building. As the Sentencing Commission recognized last week, it is essential to maintaining public faith in our laws and in our courts. Threats to equality, these past decades show, come not only in the form of obvious, intentional racism, but also in the form of subconscious bias--such as when juries implicitly value white lives more than black ones--and seemingly neutral rules--like the crack/cocaine disparity--that unfairly exacerbate racial differences. Wealth, power, and celebrity also exert inappropriate influence, as cases from Scooter Libby to Paris Hilton illustrate.
Americans recognize those values for practical as well as altruistic reasons. Providing a chance to start over, and the tools to rehabilitate oneself, benefits not only those who make mistakes, but our entire society. And all of us want fair and equal treatment if we should be accused or convicted of a crime.
The return to these values, and to rational criminal justice policy is most welcome. But it is also tenuous, especially as violent crime rates begin to tick upward in many cities after years of decline. It will be important, moreover, to combine these policies with rehabilitation that actively prevents crime and violence. Congress should heed the Sentencing Commission's call to eliminate the statutory crack/powder disparity, and but pass the Second Chance Act, which would broaden access to quality drug treatment, support academic and vocational prison programs, provide transitional assistance to people emerging from prison, and strengthen support systems by encouraging states to reunite families. The feds should also renew financial and technical support for smart community policing in cities around the country.
Reforms should continue to pursue redemption and equal justice in ways that protect the public. People with long and violent criminal histories, for example, will not benefit from the Sentencing Commission's ruling. And federal judges will consider each prisoner's motion separately, weighing factors like the nature of the offense, the defendant's history, and whether early release would pose a danger to the public. Death row inmates in New Jersey will automatically serve life sentences without parole.
After decades of heading in the wrong direction, the4se are small signs of a return to our highest values and our best interest. As Election Day draws nearer, let's hope we continue to learn the right lessons.