By Nkechi Taifa —
From the kangaroo courts and lynching laws of yesterday to the still lingering crack vs. powder-cocaine disparity today, miscarriages of justice have been an ever-present feature of the U.S. criminal punishment system. However, there has always been the power to correct mistakes through clemency — a catch-all term for several related procedures, including shortening sentences through commutation, eradicating civil disabilities through pardon, or expunging convictions through exoneration.
1923. Marcus Mosiah Garvey, the charismatic founder of the Universal Negro Improvement Association (UNIA), was unjustly convicted of mail fraud. Garvey was one of the first targets of J. Edgar Hoover, who had recently taken the helm of what would later be known as the Federal Bureau of Investigation. Hoover harbored a personal vendetta against the black leader and was relentless in his goal to discredit and lessen his influence. Although President Calvin Coolidge eventually commuted Garvey’s sentence, the UNIA to this day demands a complete expunging of Garvey’s unwarranted conviction through both an exoneration and a government apology for violating his rights and smearing his name.
1931. Nine black teenagers were wrongfully accused of the gang rape of two white women in Alabama. The cases became known as the “Scottsboro Boys.” They included fabricated testimonies, all-white juries, hasty trials, mob violence and media sensationalism. Originally sentenced to death, the Scottsboro Boys were tried two more times and, despite the retraction of testimony by one of the accusers, were convicted two more times (although the death sentence was set aside). By 1989, the men were all deceased — after leaving imprisonment either through parole, escape or death, and after languishing for years in a deplorable rat-infested prison. The shameful case of the Scottsboro Boys did have one positive effect: it proved pivotal in changing the policy of excluding blacks from juries in the South. In 2013, more than 80 years after their trials, the Alabama Board of Pardons and Parole expunged the wrongful convictions with posthumous pardons.
1989. Five Harlem teenagers (four African-American and one Latino) were arrested, unlawfully interrogated and convicted of the gang rape and brutalization of a white jogger in Central Park. Known as the “Central Park Five,” the youth were reportedly subjected to law enforcement and prosecutorial misconduct, resulting in coerced confessions. Reminiscent of the Scottsboro Boys’ case, media sensationalism abounded (remember “wilding”), fueling the belief that they were guilty well before their trials. The teens renounced their false confessions and declared their innocence to no avail. The Central Park Five spent years in prison — until the real rapist came forward, confirmed by DNA evidence. Their sentences were vacated and they were exonerated. Settlement of their civil suit finally appears imminent, after years of delay.
1996. College student Kemba Smith got caught up with the wrong guy and was sentenced as a first time nonviolent drug offender to 24 and a half years in federal prison. The United States has moved from overt racist lynching and explicitly blatant discrimination as the order of the day to mass incarceration as its punishment of choice. Unlike the environment the Scottsboro Boys found themselves in, today’s racism is subtly hidden in statutes, laws, policies, and procedures that look fair, but have a racially discriminatory impact. Mandatory minimum sentences, where a judge is required to impose a fixed number of years that cannot be deviated from, exemplify this. These sentences have been a major driver of the prison population, which has now exceeded two million people behind bars. For nearly 25 years, the disparity in penalties between crack and powder cocaine was perhaps the most egregious example of the severity and unfairness of mandatory minimum sentences. Five grams of crack cocaine, the weight of a couple of sugar packs, yielded the same five-year sentence as 500 grams (more than a pound) of powder cocaine. This 100-to-one quantity ratio disproportionately impacted African-Americans, who were arrested more often on crack cocaine charges (if crack flourished in Harlem, powdered cocaine flourished on the Upper East Side) — meaning a black kid with a little crack cocaine could spend more time in jail than a white kid with a whole lot of powdered cocaine.
Luckily for Kemba Smith, she became the poster child for the abolition of harsh mandatory minimum crack-cocaine penalties, and she, along with many others, had her sentence commuted at the conclusion of the Clinton presidency. When Smith walked out of prison, however, she left behind thousands of men and women who were likewise convicted under the egregious 100-to-one crack-cocaine law and who also deserved a commuted sentence. President Clinton’s drug commutations and the publicity surrounding them helped lead to the passage of the Fair Sentencing Act in 2010, which reduced the disparity from 100-to-one to 18-to-one (which is still not what I would call “fair”), but left intact the sentences of those who were already incarcerated. This left a huge class of people still in prison under a discriminatory law — a law that was now no longer in effect. It was wrong that the disparity lasted nearly a quarter of a century and equally wrong that it did not extend to those incarcerated before its passage.
2003. Outgoing Illinois Governor George Ryan granted clemency to the state’s 167 death-row prisoners, commuting most of their sentences to life and pardoning four who he felt had been wrongfully convicted. This move came partly as the result of hearings investigating the brutal techniques carried out against African-American suspects in a Chicago police department from 1972 to 1991. The hearings included testimonies of torture involving electric shocks, use of cattle prods on genitals, suffocation with plastic bags, and other atrocious practices on suspects to make them confess. Many were convicted and placed on death row. Because of scandals such as this, Ryan concluded that the legal process surrounding capital punishment had become so corrupted in Illinois that clemency for all those on death row was the only remedy.
Today. Seventeen years after the Clinton-era drug commutations, former college student Clarence Aaron was one of eight drug offenders whose harsh sentence was commuted by President Obama last December. Despite being a first-time offender, Aaron received three life sentences at age 24 for his role in a cocaine deal in 1994, in which he was not the buyer, seller, or supplier of the drugs. Instead of dying behind bars, he now has the chance for a productive life. The Obama crack commutations, however, represent the tip of the iceberg of cases left behind when the Fair Sentencing Act became law. The president, signaling his desire to correct this injustice, stated:
Today, I am commuting the prison terms of eight men and women who were sentenced under an unfair system. … Commuting the sentences of these eight Americans is an important step toward restoring fundamental ideals of justice and fairness. But it must not be the last.
Presidents have always had the power to correct miscarriages of justice and impact future policy through the executive clemency power. President Kennedy sought to relieve the impact of lengthy mandatory minimum narcotics laws from the 1950s through sentence commutations. President Ford addressed the sensitive issue of the convictions of Vietnam-era draft-dodgers by establishing a review board to vet appropriate cases for possible commutation. President Carter used the clemency power to offer draft-evaders amnesty as a way to heal the wounds from the controversial Vietnam War.
The Obama administration has recognized that a direct path to correct the flaws of drug law sentencing is through a systematic exercise of the clemency power, similar to the drug and anti-war commutations of the past century. Loosely following the script from Presidents Kennedy and Ford, Deputy Attorney General James Cole appealed to the legal community in January to assist in the identification and vetting of long-standing drug cases deserving of commutation, particularly those where there has been a later change in the law.
With this announcement, it is clear that Obama is poised to make robust use of the clemency power to finally bring balance to a justice system that for decades has meted out extraordinarily lengthy sentences that often have not fit the crime. And an executive focus on classes of individuals adversely impacted by unduly harsh sentencing policies could inject urgency into the national discourse over mass incarceration — and serve as the catalyst for legislative reform.
Use of the clemency power represents an exceptional opportunity to correct miscarriages of justice and right historical wrongs. Just as attention to the cases of Garvey, the Scottsboro Boys, the Central Park Five, the Illinois death-row cases, and Kemba Smith resulted in renewed conversations about racism and criminal justice, it is my hope that the Obama-era drug commutations will advance the dialogue about mass incarceration and bring justice to a historically flawed criminal punishment system.
Nkechi Taifa is a social justice attorney, activist, author, entrepreneur, and motivational speaker. She has a rich history specializing in the advancement of projects that advance the legal, educational, cultural, and financial health of the African-American community. Visit her website at www.LegacyEmpowerment.org.