With the Stroke of a Pen: Jena and the Justice System

By Nkechi Taifa
Guest Contributor
Afro-Netizen

“I can be your best friend or your worst enemy.  If the protests at the school do not stop, with the stroke of my pen I can make your lives disappear.”  That was the harsh threat from Jena, Louisiana District Attorney Reed Walters as he addressed Jena High School students in an assembly last fall. 

Until a wave of public opinion recently ushered in a sea change of outrage, Walters’ boast was destined to become reality.  Black teens were hauled to adult court for trial, maximum charges of attempted second degree murder and conspiracy were filed, excessive bail was required leading to prolonged pretrial incarceration for one of the youths and an all white jury was drawn from an all white jury pool.  The structures were in place and the stage set for a legal lynching.  The lives of the Jena Six were on the verge of disappearing.

Nationwide public attention will assure that will not happen. But after the buses of protesters have pulled out of Jena we need to ask not only how do we right the wrongs done to these six young men?  We also need to ask, what is it about our current criminal justice system that made this possible?  Five years ago massive protests were required to obtain justice for the wrongly accused black population of Tulia, Texas.  In between, there were countless examples of African American lives made to “disappear” with the stroke of a prosecutor’s pen, like the pregnant Hamedah Hassan who was convicted of a nonviolent crack cocaine offense and sentenced to 27 years in prison.  Her daughter will be a grown woman before her release.  Will we still be dealing with outrageous tragedies like Tulia and Jena then?

What makes outrages such as these possible?  A matrix of criminal justice policies, procedures and penalties that lead to unbridled prosecutorial discretion,  overcharging, and senseless mandatory penalties which impose sentences that oft times do not fit the crime. Combined with pervasive residual racism and a broken, chronically under-funded public defender’s system, is it any wonder that there are more young black men incarcerated than in college?

Chief culprit in this continuing saga of unequal justice is the dramatic, unjustified disparity between the federal mandatory penalties for crack and powder cocaine.  Despite the absence of any scientifically valid evidence that the two forms of cocaine have different medical consequences in the body, there is literally a 100:1 disparity in the amount of powder cocaine required to impose the same sentence for a given amount of crack.  The non-partisan United States Sentencing Commission has identified this single area of the law as the most important factor accounting for the dramatic racial disparities in federal sentencing between blacks and whites.

Senator Joseph Biden and Representative Charles Rangel have introduced bills with the right approach to correct the infamous crack/powder cocaine disparity.  With a favorable vote in Congress and the stroke of the presidential pen, this law can be changed.   

If we truly want systemic change which outlasts “feel good” but necessary marches and demonstrations, the Jena public outcry must also demand that Congress step up to the plate.  Beyond equalizing cocaine penalties, the Congress should repeal the system of draconian mandatory minimum sentences and help turn the tide on the flood of legislation over the last decade which permits the transfer of young people to adult courts for an ever expanding list of offenses.  Steps must also be taken to minimize the overrepresentation and disparate treatment of youth of color at every stage of the juvenile justice process.

With Jena on center stage, will linkages and connections be made? Will scrutiny of Jena go beyond the surface?  Will systemic issues of structural racism be addressed?  It is critical that hearings on cocaine sentencing reform be scheduled.  It was the stroke of a pen that ushered in the harsh era of crack cocaine sentencing over twenty years ago.  The stroke of a pen today can eradicate it. 

The scrutiny and public attention surrounding the tragedy in Jena must be broadened to embrace other inequities as well.  Hopefully this latest outrage will be the catalyst that brings a tsunami of systemic change to the criminal justice system.

Ms. Taifa is an attorney and the Senior Policy Analyst at the Open Society Policy Center.

Comments

[dsf]

"With Jena on center stage, will linkages and connections be made? Will scrutiny of Jena go beyond the surface?"

Further scrutiny of Jena will soon turn up a young black girl whose face has been permanently disfigured. Where will the movement be then after the full story of Mychal Bell's previous offenses is told?

Dump Jena now, it's a powderkeg ready to explode into a PR nightmare for any kind of anti-racist movement.

Remember Megen Williams and Genarlow Wilson. Those are clear cases of injustice and their histories are not mired in scandal.

[Blair]

The Tulia drug sting rounded up 46 people, 40 of whom were African Americans. Nearly one in two of Tulia's black males were arrested, about 15 percent of the town's black population. However, readers who purchase the best book on the case, “Tulia: Race, Cocaine, and Corruption in a Small Texas Town” by Nate Blakeslee, will be disappointed to learn that virtually all those arrested had previous convictions or multiple convictions from drug trafficking. The lawyers who assembled to defend those charged with selling drugs alleged that the arresting officer arranged to make purchases in school zones to increase the severity of punishment and that, since the cocaine he allegedly purchased was lower than normal purity, he may have “cut” the cocaine to make the amounts purchased larger than they really were. Their most powerful argument was that the arresting officer, who happen to be the son of a highly-respected Texas Ranger, had exhibited erratic behavior that had gotten him fired from other law enforcement jobs. He also had lied on his job application by stating that he had no warrants pending against him. Actually, the police department he had worked for prior to being hired in Tulia had charged him with filling his private vehicle with gasoline from the municipal pump on his last day at work. This charge was dropped when he paid for the gasoline, but the warrant was still pending when he filled out the Tulia application.

The court overturned the Tulia convictions because it agreed that the Tulia Police Department should never have hired an officer with such a spotty record. However, the Tulia defense lawyers’ true target was the drug enforcement system itself. By pumping drug enforcement money into police departments, the federal government encourages even small town police forces to create drug enforcement departments and launch sting operations, mostly aimed at small-time dealers rather than suppliers. Such anti-drug operations tend to snare members of poor minorities. It’s not that the police departments are racists; they are in it for the money.

The irony is that federal and state drug laws that crack down hardest on minorities were enacted at the urging of black civic leaders who complained that lax enforcement and, in particular, the crack cocaine epidemic was destroying black neighborhoods. These were the same black leaders who once complained, with good reason, that police departments ignored crime in black neighborhoods while focusing their resources on patrolling white neighborhoods where crime was virtually nonexistence. Black leaders need to recommend coherent drug enforcement policies and programs that protect black neighborhoods while reducing the adverse impact of current drug laws on minorities.

Interracial violence like the Jena Six beating incident makes headlines but is so rare that it is statistically insignificant. We could probably squeeze all those convicted of violent hate crimes into a single cell block.