Why Federal Sentencing Reform Would Make a Difference -- Particularly for Communities of Color

04/08/2016 04:00 pm ET Updated Apr 09, 2017

There are few institutions in American life that have a harsher impact on people of color -- and African Americans in particular -- than the criminal justice system. Of Black males born in 2001, one in three can expect to spend at least a year of his life in prison. The combination of socioeconomic disadvantage and criminal justice policies creates a toxic brew, with 70 percent of Black male high school dropouts incarcerated by the age of 35.

Although the federal prison system houses only a fraction of America's prisoners, it contributes to these outcomes - primarily due to the war on drugs. Of those sentenced for federal drug offenses last year, 73 percent were Black or Latino, even though Whites use and sell drugs at roughly the same rate.

Today, half of all federal prisoners are serving time on a drug charge, and nearly half of them were subject to a mandatory minimum penalty at sentencing. Mandatory minimums do not impact racial and ethnic groups equally. For example, in federal drug cases in 2010, over 40 percent of Blacks were subject to a mandatory minimum compared to 18 percent of Whites.

To address these problems, bipartisan legislation has been introduced in the House and Senate which would, among other things, give judges more authority to impose sentences that actually fit the crime in non-violent drug cases. Specifically, the legislation would expand the "safety valve" to allow judges to impose a sentence below the mandatory minimum penalty when appropriate. The impact of this provision would be significant. According to the U.S. Sentencing Commission, which provides the most reliable data available on federal sentencing, about 4,000 individuals would benefit each year from the safety valve expansion.

In addition, the bill would also apply the Fair Sentencing Act of 2010 retroactively, allowing individuals incarcerated under the old, unfair crack law to seek a sentence reduction in accordance with the lower penalties - this change would reduce sentences for more than 5,000 currently incarcerated individuals. Looking out ten years, we could potentially see tens of thousands of drug sentences reduced, many by an average of two years. That would make a significant difference in the lives of many individuals and families and have a substantial impact on the number of people incarcerated for federal drug offenses.

Moreover, these two provisions begin to address racial and ethnic injustice associated with mandatory sentencing. Historically, mandatory minimum penalties have disproportionately applied to people of color -- African Americans in particular -- because they qualify for relief less often than other groups. According to the Sentencing Commission, criminal history is the single most important factor excluding black individuals from safety valve relief.

These bills would address this racial unfairness by allowing individuals with a modestly greater criminal history to qualify for safety valve relief. Crucially, the bill would allow a court to waive the criminal history score entirely if the court determines that it over-represents the public safety risk. These factors were taken into consideration when the Sentencing Commission concluded that the legislation would shorten sentences for thousands of black and brown individuals.

Even more dramatic would be the retroactive application of the Fair Sentencing Act. Since the enactment of harsh crack penalties in the 1980s, more than 80 percent of federal crack defendants have been African American. Though the Fair Sentencing Act was intended to partially rectify this unfairness, it did not benefit individuals imprisoned under the previous sentencing disparity. Applying the reduced crack penalties retroactively would thus allow thousands of African Americans to secure release from federal prison after serving terms under the provisions of the new law.

To be sure, these measures represent a compromise - they are not the bills that civil rights groups would have written themselves. For example, prison reform provisions are convoluted and needlessly exclusionary, potentially allowing a disproportionate number of white prisoners to benefit from rehabilitative programming and sentence reductions. Nevertheless, even these provisions would benefit African Americans and Latinos, who make up nearly three-quarters of the overall federal prison population.

A year ago, if someone said that Senators Chuck Grassley (R-Iowa), John Cornyn (R-Tex.), Dick Durbin (D-Ill.), Pat Leahy (D-Vt.), and Cory Booker (D-New Jersey) would team up on drug sentencing reform, many would have thought they were delusional. And yet, Congress is poised to pass a criminal justice reform bill with real potential for having an impact and for changing the political climate.

As a first step, the Senate should take up and pass the Sentencing Reform and Corrections Act - without delay. And once this historic legislation is enacted, the campaign to reduce excessive incarceration and racial disparities in America's criminal justice system will continue.