Obama, Race, and Justice

The second part of the President's lament affects far more people than the first. As a matter of law and a matter of fact there is racial disparity both in the enforcement of drug laws -- who gets arrested and prosecuted and who doesn't -- and in the sentencing that occurs following conviction or the entry of a guilty plea. For a general sense of the scope of the problem, here's how the folks from Human Rights Watch wrote it up in their 2013 Report:

Racial and ethnic minorities have long been disproportionately represented in the US criminal justice system. While accounting for only 13 percent of the US population, African Americans represent 28.4 percent of all arrests. According to Bureau of Justice Statistics approximately 3.1 percent of African American men,1.3 percent of Latino men, and 0.5 percent of white men are in prison. Because they are disproportionately likely to have criminal records, members of racial and ethnic minorities are more likely than whites to experience stigma and legal discrimination in employment, housing, education, public benefits, jury service, and the right to vote.

Whites, African Americans, and Latinos have comparable rates of drug use but are arrested and prosecuted for drug offenses at vastly different rates. African Americans are arrested for drug offenses, including possession, at three times the rate of white men. In 2008, African American motorists were three times as likely as white motorists and twice as likely as Latino motorists to be searched during a traffic stop. In New York City, 86 percent of persons "stopped and frisked" by the police were African American or Latino, even though they represented 52 percent of the population. According to the New York Civil Liberties Union (NYCLU), 89 percent of those stopped were innocent of any wrongdoing.

Last month, the American Civil Liberties Union released a report titled "The War on Marijuana in Black and White" that gives more definition to these statistics:

The war on marijuana has largely been a war on people of color. Despite the fact that marijuana is used at comparable rates by whites and Blacks, state and local governments have aggressively enforced marijuana laws selectively against Black people and communities. In 2010, the Black arrest rate for marijuana possession was 716 per 100,000, while the white arrest rate was192 per 100,000. Stated another way, a Black person was 3.73 times more likely to be arrested for marijuana possession than a white person -- a disparity that increased 32.7% between 2001 and 2010.

It is not surprising that the War on Marijuana, waged with far less fanfare than the earlier phases of the drug war, has gone largely, if not entirely, unnoticed by middle- and upper-class white communities. In the states with the worst disparities, Blacks were on average over six times more likely to be arrested for marijuana possession than whites. In the worst offending counties across the country, Blacks were over 10, 15, even 30 times more likely to be arrested than white residents in the same county. These glaring racial disparities in marijuana arrests are not a northern or southern phenomenon, nor a rural or urban phenomenon, but rather a national one.

A national problem -- but one that is not being recognized with any consistency by (largely white) state legislatures around the nation. Earlier this month, for example, Oregon became only the third state in the nation to require "racial impact" statements that could help ease (and certainly will help foster public debate about) disparities in sentencing. And Florida's belated prosecution of George Zimmerman for killing Trayvon Martin, the story that prompted the President's remarks, revealed the racially disparate impact of "stand-your-ground" laws all around the nation.

If there is little the federal government can say in defense of its continuing tolerance of racial disparity in capital cases, at least the White House, Congress and the federal judiciary have begun to address some of the disparities in sentencing. In 2010, Congress enacted and President Obama signed into law the Fair Sentencing Act, a federal statute that reduced (but did not eliminate) disparities in sentences for crack versus powder cocaine. And in 2012, the United States Supreme Court, endorsing the constitutionality of that law, applied it retroactively. These are good steps. But they alone don't come close to solving the problem.

"And that ends up having an impact in terms of how people interpret the case... "

The bases for this line from Friday's remarks ought to be self-evident and uncontroversial. Of course systemic racial inequality in the nation's justice systems would cause minority citizens to be skeptical about the ability of those systems to consistently deliver just results. Of course the perceptions of those people who believe that they or their families have been victimized by racial inequality in justice systems would be skewed differently than those who do not harbor such beliefs. That many white people have never experienced this inequality, or are skeptical about its existence, does not mean that it isn't happening or that its cynicism-inducing impact upon others isn't real.

"...It's not to make excuses for that fact, although black folks do interpret the reasons for that in a historical context."

Here the President is treading upon the most controversial aspect of the passage above. He knows that he has to acknowledge the obvious response to his comments -- "there is racial disparity in the criminal justice system because minority citizens commit more crime"-- and he is trying to do so in a candid way. There is racial disparity under our rule of law not just because, as he says, "African-American young men are disproportionately involved in the criminal justice system, that they are disproportionately both victims and perpetrators of violence," but also because as a nation we've done a terrible job of limiting this disparity by implementing race-neutral legal rules and standards and by reducing the dire economic conditions which give rise to crime.

Presented by

Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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