It appears that the Obama administration’s Department of Justice has put a hold on the evidence used in the case against George Zimmerman, who was acquitted of a crime by a Florida jury in his shooting of Trayvon Martin. The DOJ is considering pressing its own case against Zimmerman, for a violation of Martin’s civil rights, a charge that would put race back in the center of the story. President Obama has made clear that the racial aspects of the case deeply trouble him.
For this administration to re-open the Zimmerman case, with all the resources that will take, would be the equivalent of pointing at the speck in Florida’s eye while ignoring the log in its own. While the Trayvon Martin case involved one tragedy, more than 5,000 African-Americans remain in prison under lengthy federal sentences under a sentencing regime which has now been rejected by all three branches of government. That scheme—which sentenced defendants to the same mandatory minimum term for either 500 grams of powder cocaine or just 5 grams of crack—was rejected by the administration, by the courts, and finally in 2010 by Congress, which reduced the ratio from 100-1 to 18-1.
One key reason for this rare and remarkable change was the obvious racial disparities the law created. African-Americans, overwhelmingly, were charged with crack offenses, while whites and Hispanics were charged with crimes related to powder cocaine.
However, Congress (to its discredit) did not make the law retroactive. That means that the new ratio applied only to future defendants, and did not give relief to the thousands of African-Americans who continue to serve time under the now-rejected law.
At this point, the only feasible way to fix this gross racial inequity is for President Obama to act through the pardon power, and commute the crack sentences so that they are right-sized to the current 18-1 ratio. A great model for such a mass commutation exists, one pioneered by a Republican President: President Ford’s 1974 mass clemency granted to draft evaders. Ford had the courage to create a special panel to quickly review 21,000 petitions. That panel did so with remarkable efficiency. It made recommendations on all the petitions in one year and for a reasonable cost. President Obama, with the acquiescence of the DOJ, should create a similar mechanism for 100-to-1 crack defendants, now, if they really do care about race and justice.
The Department of Justice would be well advised to support such an effort, because the problem was largely caused by the actions of that department in aggressively prosecuting black defendants under those laws, while ignoring whites who peddled the powder cocaine that went to the suburbs or served as the raw ingredient for crack. Those low thresholds for tough crack sentences served as an incentive for agents and prosecutors, and created easy “kingpin” cases that made absolutely no difference in the community.
I know this because I was one of those prosecutors. From 1995-2000, I was an Assistant United States Attorney for the Eastern District of Michigan, based in Detroit. As a low-level DOJ line attorney, many of my cases were these small-time crack cases that got long federal sentences. Of them all, I don’t recall a single white defendant.
In other words, I was complicit in the misuse of the wrongheaded 100-to-1 sentencing laws which worked to create a clear and continuing racial unfairness. I regret that, and have worked to undo the harm that we did. The DOJ should do the same, and that department and the Obama administration should make commutation for hold-over crack defendants at least as much of a priority as revisiting the Trayvon Martin case.
Mark Osler