Obama, Race, and Justice

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.


Given the evidence above, it's hard to know what is more disheartening about the president's remarks -- the fact that he needed to remind his fellow citizens that such racial disparities still exist 50 years after Birmingham or the fact that the former constitutional law professor's mention of those disparities would give rise to cries of "race baiting." How are we, as a nation and as a people, going to fix the racial problems in our justice systems if we cannot honestly admit to one other that they exist? The cries today against the President's speech are of a piece with the cries heard 50 years ago: A black man who acknowledges unequal justice is the problem -- not the unequal justice he acknowledges.

In these circumstances, where even raising the specter of unequal justice (and its pernicious impact) gives throat to such ugliness, it's no wonder some perceive the President to be more pessimistic than he used to be on the subject of race. Since he published the Audacity of Hope in the fall of 2006, Obama has witnessed the resurgence of voter suppression efforts aimed at minorities. He has witnessed the rise of the Tea Party. He has witnessed a Supreme Court hostile to affirmative action and a prison system still flooded disproportionately with minority inmates. Against all this, these blossoming vestiges of America's racial past, it's not hard to imagine him imagining himself as the outlier. A step forward amid many steps back.

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

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