While Obama boasts reducing the number of federal prisoners,1 lawmakers on both sides of the aisle are showing signs that they aren’t done with mandatory minimum laws just yet. It doesn’t matter whether we slap mandatory penalties on guns, drugs, or failing to pick up after your dog. The result will be the same: charges that justice is not color blind.
Whether or not our justice system selects against people of color should come after the question of whether there is a reason so many minority offenders are locked up. No one wants to touch that one, least of all our president after a speech to the NAACP that discussed reforming penalties. Obama focused on drugs instead of firearms, but guns are the reason for the next push to lock up offenders for a very long time.
Is rethinking mandatory minimum laws Smart on Crime, or politics?
The Justice Department’s Smart on Crime initiative set up priorities that sound a lot like the way we are dealing with illegal immigrants: criminals first, those caught up in the net because of non-violent infractions later or not at all.
A memo from Eric Holder in August 2013 set up federal prosecution priorities. One of the goals was to “strengthen protections for vulnerable populations.”2 Another was to not impose “draconian mandatory minimum sentences” on nonviolent offenders.3
The difference between the level of offense committed by nonviolent offenders who fuel violence by selling drugs and violent offenders who kill because of them is a hazy one. Obama’s commutation of sentences considered excessive by his administration begs the question of whether nonviolent drug trafficking is still considered a serious crime (see: Children Die, Guns Blamed, and Prison Sentences Scrapped). Gun ownership and firearms trafficking have taken first place.
Gang violence is the crime of choice in big cities these days, but of all the types of crime Congress could take up, criminal gangs are perhaps the least color blind of all.
Bad news about who is committing the crime
The Federal Government’s “National Gang Center” describes the ethnic makeup of street gangs:
Reflecting the racial/ethnic divide along socioeconomic lines across the country, the largest percentage of gang members in the NYGS [National Youth Gang Survey] belong to minorities, with around half reported as Hispanic/Latino and approximately one-third as African American/black. Around 10 to 15 percent of gang members are reported as white/Caucasian.4
That’s a problem, given that our political parties are struggling to please Hispanics and law enforcement against African Americans has become a topic of national contention.
What is the solution? How about a bipartisan bill for more harsh sentences?
No anti-gang law can be color blind
During his NAACP speech Obama prided himself on reducing the use of mandatory minimums:
Under the leadership of Attorney General Eric Holder — now continued by Loretta Lynch — federal prosecutors got what he called “Smart on Crime,” which is refocusing efforts on the worst offenders, pursuing mandatory minimum sentences 20 percent less often than they did the year before. The idea is you don’t always have to charge the max.5
He never used the words “gun” or “firearms” in his speech.
The murder of Hadiya Pendleton in Chicago created a national poster child for gun control. In a break from liberal White House policy, Senate Democrats and some Republicans have tacked her name onto S. 1760, a bill with the unwieldy title The Hadiya Pendleton and Nyasia Pryear-Yard Gun Trafficking and Crime Prevention Act of 2015.
Despite Obama’s efforts to get away from mandatory minimum laws because of their impact on minority offenders, the bill seeks to reinforce harsh penalties for offenders who will necessarily be minorities. Illinois Senator Dick Durbin explains:
The bill establishes harsh penalties, including a maximum prison penalty of 20 years for the above infractions. The penalty is further increased by five years for the organizer(s) of the trafficking ring, and conspirators face a maximum penalty of 20 years. The legislation also calls upon the Sentencing Commission to substantially increase the penalties for trafficking when committed by, or in concert with, members of gangs, cartels, organized crime rings or other criminal enterprises.6
While the bill doesn’t enforce new mandatory minimum sentences, it would have the same effect by ramping up penalties for firearms trafficking. Durbin and the other supporters of S. 1760 need to remember who will be most impacted. They should think a few years ahead and figure out what they will do when we find out these new penalties apply largely to blacks and Hispanics, the same groups they are so afraid of offending.
SAFE Justice penalties will never be safe enough
Not to be outdone, House lawmakers came up with H.R. 2944, the SAFE Justice Act, which vows to reform criminal justice and give a break to low level offenders but keeps lengthy sentences in place:
For offenders who meet the existing weight thresholds and are employed in drug trafficking organizations of 5 or more participants, they can be sentenced to up to life in prison.7
Life is a long time. The ethnic makeup of street gangs means that a disproportionate number of minority offenders will still be incarcerated.
What comes next? Obama seemed to answer that question when he commuted 46 sentences last week. We will continue to tweak our criminal justice system until no one can be said to be discriminated against or treated unfairly, even if it means lightening up on minorities who commit serious crimes because whatever laws we pass, politics will always be more important than the truth.