Criminal Justice Commission, Tribal Public Safety and Sentencing Disparities See Progress


Despite a slow session for Congress, both the House and Senate have spent the week working to pass legislation before the August recess.  Here are some updates on significant events in the realm of Criminal Justice and Native American advocacy:

The National Criminal Justice Commission Act (H.R. 5143) was passed by the House of Representatives on Tuesday, July 27th.  If passed through the Senate to be signed into law by President Obama, the legislation will create an 11-member bipartisan commission to look at comprehensive changes for the criminal justice system from causes of crime to laws governing life after release from prison.  Considering the huge impact of the criminal justice system and too-often-racialized outcomes, MCC has supported this in-depth study.

The Tribal Law and Order Act was passed through Congress and signed into law by President Obama on Tuesday, July 27th as an amendment on the Indian Arts and Crafts bill (S. 725).   The bill takes the U.S. government a step closer to fulfilling historical trust and treaty obligations to provide for public safety in Indian country.

The Fair Sentencing Act (H.R. 1789) was passed through both the House and Congress on Wednesday, July 28th and waits to be signed into law by the President.  The bill raises the quantities of crack cocaine that trigger mandatory five and ten year prison sentences from 5 to 28 grams, and from 50 to 280 grams.  The disparity has gone from 100:1 to 18:1, with powder cocaine staying at 5 years for 500 grams.

The justification for maintaining some disparity was that law enforcement must still have the tools needed to address crime and drug use on the streets.  This dangerous misunderstanding creates false stereotypes and broken communities impacted by the deep consequences of racially-oriented drug policies.

Those with 5 grams of crack cocaine are more likely to be low-level users and people of color.  Individuals with 500 grams of powder cocaine, however, are more likely to be white, high-level dealers.  Although crack usage is similar throughout all ethnicities, in 2007 African Americans represented 81% of those convicted for crack offenses.

The disparity clearly places a higher burden on African American communities and although it will be reduced it is unlikely to change the racial dynamics of the policy.  For this reason MCC stopped actively supporting the legislation after it became clear the disparity would only be reduced and not eliminated.

The positive aspect of this change is that it is estimated to reduce sentences by about 27 months for around 3000 individuals incarcerated for low-level possession each year.   After 10 years of enactment it is estimated that the prison population will be reduced by 3800 individuals per year.  This is undeniably significant after nearly 25 years of 100:1 policy.

As we recognize this significance, we also firmly believe that continuing any disparity unjustly supports systemic racism and that any justification given to support it is inaccurate.  The idea that law enforcement would need any tool which disproportionately affects any minority community when usage is so similar is false and must be righted both through policy and in our social conscience.

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