A President of the United States rarely takes to his bully pulpit to talk about a single criminal case. But last week President Obama approached the podium for a second time to talk about the eponymous Trayvon Martin case. The first time President Obama said if he had a son, he’d look like Trayvon. This second time, in a more introspective vein, he said that Trayvon could have been him thirty-five years ago. He also reflected on the racial prejudice that still exists throughout our land and laws such as Florida’s Stand Your Ground law that have recently crept into our jurisprudence.
The Trayvon Martin case and especially this young man’s death exploded into the national conscience. The President used the media’s fascination with its legal outcome as an opportunity to talk about race, guns, and laws that on their face justify violence and encourage tragedies like the one that occurred that dark and rainy night. All to the good, but I wish he had expanded his call for conversation and dialogue to include a much larger tragedy: the loss of an entire generation of African-American men from our society — an occurrence that worsens every day and to some extent is a result of the policies of his administration as well as previous administrations.
The front pages of the newspapers, the lead stories of television news, and commentators nationwide reported and analyzed every detail of the trial, the verdict, its aftermath, and the President’s press conference. At the same time, the media completely ignored the release of a ground-breaking inclusive examination of the profound racial and ethnic disparities in America’s criminal justice system, and concrete ways to overcome them: It is titled Criminal Justice in the Twenty-First Century, Eliminating Racial and Ethnic Disparities in the Criminal Justice System. The report was co-sponsored by the Association of Prosecuting Attorneys, the Brennan Center for Justice at New York University School of Law, the Foundation for Criminal Justice, the National Association of Criminal Defense Lawyers, the Center for NuLeadership on Urban Solutions, and the New York County Lawyers’ Association.
The scope of the racial disparity is staggering: 2.2 million people are incarcerated in the U.S. as of 2012, many for non-violent offenses, at a cost of over $70 billion per year. We incarcerate at a higher rate than any country in the world. Millions more are under some form of restraint or supervision, either while the case is pending or as component of the final sentence. A staggering 65 million adults in the United States — approximately one in four — now have a criminal record, and live with increasing public exposure, civil disabilities and other consequences that flow from a criminal record. This mass incarceration has consigned 1.3 million African Americans and Hispanics to prison. According to the latest available figures, these two groups comprise 58 percent of all inmates, even though they make up only one quarter of the U.S. population.
The problem of racial disparity in our system goes beyond incarceration. Upon leaving prison these men and women face over 34,000 laws restricting employment, housing, eligibility for assistance, voting, and education. They are relegated to being part of a permanent under-class of our society with little chance for rehabilitation or integration. President Obama says Trayvon could have been him thirty-five years ago. What he didn’t say was Trayvon had over a 30 percent chance being incarcerated at some point in his life and a 90 percent chance of being arrested. The same statistics apply to President Obama if he were a teenager today. These numbers apply to all African-American men in the U.S.
If President Obama is serious about a dialogue about race, he needs to pay heed to the report’s conclusion that you cannot fix structural or institutional racism by fixing people; you can only do it by fixing the institutions and structures that continue to generate racially disparate results. If, as a nation, we are serious about ending racism, we can’t tolerate a criminal justice system that is wiping out a generation, and leaving a second generation fatherless and poverty-stricken.
The report is full of suggestions and potential solutions, but it is up to our political leadership to go beyond rhetoric and move the criminal justice system away from a paradigm that focuses on arrest, punishment and social control of communities of color to one that focuses on healing and restoration. They need to ask the hard questions and seek out solutions to problems like how do we avoid using courts as the dumping ground for difficult or seemingly intractable social problems?
President Obama has called on the country to begin a dialogue about race and to meet out racism wherever it might lurk. Yet beyond beginning a dialogue, he has a real opportunity to exercise leadership. He commands over 30 law enforcement agencies as part of the federal government, every U.S. Attorney reports directly to his Attorney General, he directs the largest prison system in the world, he appoints judges, and the Justice Department grants billions of dollars each year to local and state law enforcement agencies. He can begin to do something, as opposed to merely talking, about the root causes of racism in our criminal justice system that are identified in the report such as:
• outlawing racial profiling practices by police;
• strengthening civilian review and control of local police departments;
• bringing transparency and accountability to prosecutorial decisions, especially charging and plea bargains;
• decriminalizing more non-violent drug offenses;
• ending the practice of adjudicating juveniles in adult courts;
• repealing mandatory minimum sentencing schemes;
• repealing zero-tolerance school discipline policies that funnel youth into the criminal justice system;
• reforming “truth-in-sentencing” laws that prevent or delay the consideration of parole;
• repealing post-conviction consequences that impede the successful re-entry of those with criminal histories; and
• assessing the impact of political fund-raising and corporate contributions on sentencing.
It would be an appropriate legacy to Trayvon if he would begin to address the very real and systemic problems that affect all minorities in the criminal justice system. As a nation, let’s use this opportunity to build a lasting legacy to a tragic loss.