Sixty Years After Brown v Board of Education, Racism Persists in Prison System says Attorney General

George Lavender

Attorney General Holder's rhetoric has marked a shift away from the "War on Drugs"

Attor­ney Gen­er­al Eric Hold­er used the 60th anniver­sary of Brown v Board of Edu­ca­tion, to address the strug­gle that still must be waged” for racial jus­tice in the crim­i­nal jus­tice sys­tem. On May 17th 1954 the Supreme Court over­turned the doc­trine of sep­a­rate but equal” school­ing, estab­lished almost six decades ear­li­er under Plessy v Ferguson. 

Since the era of Brown, laws mak­ing clas­si­fi­ca­tions based on race have been sub­ject­ed to a legal stan­dard known as strict scruti­ny.” Almost invari­ably, these statutes, when test­ed, fail to pass con­sti­tu­tion­al muster. But there are oth­er poli­cies that too eas­i­ly escape such scruti­ny because they have the appear­ance of being race-neu­tral. Their impacts, how­ev­er, are any­thing but. This is the con­cern we must con­tend with today: poli­cies that impede equal oppor­tu­ni­ty in fact, if not in form.

Speak­ing to stu­dents at Mor­gan State Uni­ver­si­ty, Mary­land, Hold­er returned to an issue he him­self has pre­vi­ous­ly referred to as the school-to-prison pipeline.” 

Cod­i­fied seg­re­ga­tion of pub­lic schools has been barred since Brown. But in too many of our school dis­tricts, sig­nif­i­cant divi­sions per­sist and seg­re­ga­tion has reoc­curred – includ­ing zero-tol­er­ance school dis­ci­pline prac­tices that, while well-inten­tioned and aimed at pro­mot­ing school safe­ty, affect black males at a rate three times high­er than their white peers.

In an appar­ent ref­er­ence to the pub­lic out­cry over com­ments by Clip­per’s own­er Don­ald Ster­ling, Hold­er cau­tioned against focussing sole­ly on overt dis­plays of racism, and instead urged his audi­ence to look at the sub­tler forms of racism that still exist. The Attor­ney Gen­er­al took issue with Chief Jus­tice John Roberts, for argu­ing that the path to end­ing racial dis­crim­i­na­tion is to give less con­sid­er­a­tion to the issue of race alto­geth­er.” Quot­ing anoth­er Supreme Court Jus­tice, Sonia Sotomay­or, Hold­er sug­gest­ed that “(T)he way to stop dis­crim­i­na­tion on the basis of race is to speak open­ly and can­did­ly on the sub­ject of race.”

It is not the first time that the Attor­ney Gen­er­al has spo­ken pub­licly about racial inequal­i­ty and the overuse of prison in the crim­i­nal jus­tice sys­tem. Hold­er has made it clear that he is seek­ing to reduce the fed­er­al prison pop­u­la­tion and bring about fair­er” sen­tenc­ing, par­tic­u­lar­ly for drug offens­es. Last year, he gave a sim­i­lar speech to the Amer­i­can Bar Asso­ci­a­tion’s House of Del­e­gates in which he declared too many Amer­i­cans go to too many pris­ons for far too long and for no tru­ly good law enforce­ment reason.” our crim­i­nal jus­tice sys­tem, sys­temic and unwar­rant­ed racial dis­par­i­ties remain dis­turbing­ly com­mon. One study released last year by the U.S. Sen­tenc­ing Com­mis­sion indi­cat­ed that – in recent years – African-Amer­i­can men have received sen­tences that are near­ly 20 per­cent longer than those imposed on white males con­vict­ed of sim­i­lar crimes. Anoth­er report showed that Amer­i­can Indi­ans are often sen­tenced even more harshly. 

Under Hold­er, the Jus­tice Depart­ment has made some efforts to reverse min­i­mum sen­tenc­ing guide­lines orig­i­nal­ly imple­ment­ed as part of the decades-long War on Drugs.” A report pub­lished last month by the Amer­i­can Acad­e­my of Sci­ences found lit­tle evi­dence, when all drug types are con­sid­ered, that blacks sell drugs more often than whites.” Despite this, drug-relat­ed arrest rates for blacks have been three to four times high­er than those for whites in recent years. 

The Jus­tice Depart­ment is exam­in­ing these and oth­er dis­par­i­ties as we speak – and tak­ing a vari­ety of steps to ensure fair sen­tences that match the con­duct at issue in indi­vid­ual cas­es. Like a grow­ing cho­rus of law­mak­ers across the polit­i­cal spec­trum, we rec­og­nize that dis­parate out­comes are not only shame­ful and unac­cept­able – they impede our abil­i­ty to see that jus­tice is done. And they per­pet­u­ate cycles of pover­ty, crime, and incar­cer­a­tion that trap indi­vid­u­als, destroy com­mu­ni­ties, and dec­i­mate minor­i­ty neighborhoods.

Hold­er’s depart­ment recent­ly launched a new clemen­cy ini­tia­tive, expect­ed to large­ly ben­e­fit those con­vict­ed of drug offens­es and last year encour­aged pros­e­cu­tors not to list the quan­ti­ty of drugs found on defen­dants in non-vio­lent crimes, as a way to side-step min­i­mum sen­tenc­ing guide­lines. Hold­er has also pub­licly sup­port­ed the US Sen­tenc­ing Com­mis­sion’s vote to amend fed­er­al sen­tenc­ing guide­lines. Accord­ing to the com­mis­sion’s chair, Chief Judge Pat­ti B Saris, short­er sen­tences for drug traf­fick­ing would reduce the fed­er­al prison pop­u­la­tion by more than 6,500 pris­on­ers with­in five years. This mod­est reduc­tion in drug penal­ties is an impor­tant step toward reduc­ing the prob­lem of prison over­crowd­ing at the fed­er­al lev­el” Saris said. 

As report­ed here at The Prison Com­plex, politi­cians from both main polit­i­cal par­ties have spo­ken pub­licly about the need for sen­tenc­ing reform” but it remains to be seen if that will result in sig­nif­i­cant leg­isla­tive changes.

George Laven­der is an award-win­ning radio and print jour­nal­ist based in Los Ange­les. Fol­low him on Twit­ter @GeorgeLavender.
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