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The likely confirmation of Senator Jeff Sessions to be U.S. attorney general is deeply troubling. He believes people who possess marijuana should be arrested. He has recently opposed reform of mandatory minimum sentencing laws and appears to support privatized prisons. Surely clemency is beyond the pale.
But the real difficulty goes far deeper than his views about particular policies. He threatens to take us back to the days before we became aware of our national collective responsibility for mass incarceration.
It is only seven years – how much longer it seems – since Michelle Alexander told us in The New Jim Crow: Mass Incarceration in the Age of Color Blindness that the United States puts more people in prison per capita than any nation on earth and relegates African American and Hispanic communities to third-world status. Her landmark book exposed the War on Drugs, exploding in the 1980’s, as the primary cause.
Haltingly, Democrats and Republicans had begun working together in recent years on criminal justice reform. But listening to Senator Sessions at his confirmation hearing last week, it was as though Michelle Alexander had never written her book.
All this became painfully clear as I watched Illinois Senator Dick Durbin question him. He noted their joint effort seven years earlier to reduce the 100 to 1 disparity in federal sentencing for crack versus powdered cocaine down to 18 to 1. Since crack was most common in the inner city, it was mostly African Americans who were spared thousands of prison years due to this injustice.
At that time, Durbin had asked Sessions to join with him in “permitting the almost 5,000 still serving under this 100 to 1 standard to petition individually for leniency.” At last week’s hearing, Durbin asked him again. Sessions responded, as he has over the past seven years, that some of the 5,000 in prison might have received lesser sentences due to plea bargaining.
This is a non-answer, at best. Durbin was not seeking blanket commutation of all cases, but only the right of each individual to petition for consideration.
When crack cocaine hit the streets it the mid-80’s, in mostly African American communities, we declared a War on Drugs and placed the blame on welfare mothers and black thugs. Today, we are faced with a national opioid epidemic, predominantly among whites.
Rather than filling our jails, police are often steering users to treatment. The broader public is calling for national initiatives to save our youth. In the words of law professor Ekow Yankah, “Suddenly crime is understood as a sign of underlying addiction rather than a scourge to be eradicated.”
Of course, we should applaud this response to the most recent example of drug use run rampant in our society. Healing rather than punishment is the moral and most effective response to drug abuse “ It would be perverse to want to go back, and this is not just about racial guilt,” continues professor Yankah. “The hope is that we can really learn from our meanest moments.”
We cannot easily expunge the institutional racism, both past and present, evident in our response to drug use in our nation. But we can acknowledge, and try to move beyond it, by continuing to reform our criminal justice system. This does not appear likely to happen under Jeff Sessions as attorney general. To the contrary, it seems he has learned very little.