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Excerpted From: Jelani Jefferson Exum, Addressing Racial Inequities in the Criminal Justice System Through a Reconstruction Sentencing Approach, 47 Ohio Northern University Law Review 557 (2021) (242 Footnotes) (Full Document)


JELANIJEFFERSONExumJustice reform is having a moment. Across the nation and in the federal government, legislation has passed “to reduce the scale of incarceration and the impact of collateral consequences of a felony conviction.” While some of these reforms were the result of fiscal concerns over mass incarceration, others were in response to the criminal justice reckoning brought on by events of 2020 and intensified calls for racial justice. In the summer of 2020 media attention on the police killings of George Floyd and Breonna Taylor sparked nationwide and global protests and accompanying antiracism pledges by individuals and institutions. This social unrest and resulting commitments to social justice corresponded with an intensifying global COVID pandemic, which has disproportionately affected racial minority communities and motivated calls for release of nonviolent prisoners. In a way, this has been the perfect storm for reforming a system that has been in need of revision from its start. However, despite the movements to reform policing and efforts to reduce mass incarceration, few reforms truly take an antiracist approach--one designed to actually lead to equitable outcomes. This article argues that a Reconstruction Sentencing approach is needed to uproot the racism embedded in the entire criminal justice systemand to restore the damage done by that racism. Though sentencing may seem to be the end stage of a criminal prosecution, this article will demonstrate that a Reconstruction Sentencing approach requires going to the foundations of a criminal case and unearthing how the racially biased decisions along the way lead to disparate sentencing outcomes. An effort to reconstruct sentencing will necessarily require a reconstruction and reformation of the entire criminal justice system into one that is racially equitable and, therefore, antiracist.

This Article is a follow-up to the author's previous article, Reconstruction Sentencing: Reimagining Drug Sentencing in the Aftermath of the War on Drugs. In Reconstruction Sentencing, the promise and pitfalls of the Reconstruction Era served as a model for reimagining drug sentencing in the aftermath of the War on Drugs. Following the U.S. Civil War, the period of Reconstruction was meant to “repair[] what the war had broken apart while simultaneously attempting to uproot the old slave system and the ideology underpinning it that had rationalized the process of making property of men a 'black and white’ issue.” Similarly, a Reconstruction Sentencing approach applied to ending the War on Drugs seeks to use constitutional challenges to racially discriminatory sentencing laws--and criminal procedures leading up to those sentencing outcomes--in order to “both repair the damage done by the War on Drugs” and to “uproot the very system that relies on a wartime ideology of seeing the drug offender, who is often viewed as a Black man, as the enemy.” As Reconstruction Sentencing explains, “the purpose of reconstructing drug sentencing laws is to take away the weapon that police and prosecutors can use to decimate communities so efficiently.” The present article will apply the Reconstruction Sentencing model to a criminal case to demonstrate that Reconstruction Sentencing is an approach that requires re-evaluation of the purposes and outcomes of the criminal process in order to achieve antiracist reform.

Reconstruction Sentencing is grounded in the practice of antiracism. Professor Ibram X. Kendi has described an “antiracist idea” as “any idea that suggests the racial groups are equals in all their apparent differences.” That is the foundation of Reconstruction Sentencing, that all racial groups are equal. Therefore, racially disparate sentencing outcomes rooted in racial bias are racist and must be eliminated through law and policy. As Professor Kendi explains further, “[a]ntiracism is a powerful collection of antiracist policies that lead to racial equity and are substantiated by antiracist ideas.” Drawing from this understanding, Reconstruction Sentencing requires challenging current sentencing laws with an eye toward repairing the damage caused by racism and protecting the subjects of racism--namely Black people--from the reinstitution of policies that will lead to the continuation of those damaging results. Many of the currently proposed police reforms miss this mark.

Though Reconstruction Sentencing can apply to any sort of criminal case, because of the particular force the War on Drugs has levied against the Black community, this Article will use a drug prosecution as the framework for discussing Reconstruction Sentencing. Part I of the Article explains the framework for Reconstruction Sentencing. In that Part, the paper discusses the Reconstruction Era and examines how it serves as a model for constitutional reinvigoration to end the War on Drugs. Specifically, this Part explores the Thirteenth and Fourteenth Amendments. Part II of the paper applies the Reconstruction Sentencing model to drug sentencing laws. In Part III, the paper takes a walk through typical aspects of a drug case--from police interaction to warrants to prosecutorial charging decisions--to demonstrate how the Reconstruction Sentencing approach can be used to address the systemic racism in the criminal justice system that leads to racially disparate sentencing outcomes. Part IV concludes that reimagining constitutional arguments is necessary to actually achieve the promise of Reconstruction and to avoid the pitfalls of repackaging racism into new forms as criminal justice reforms are implemented.

[. . .]

This paper has offered a framework for applying a Reconstruction Sentencing approach to the select aspects of a drug case in order to “both repair the damage done by the War on Drugs” and to “uproot the very system” of racism on which the War on Drugs was built and continues to facilitate. Much could be accomplished by repealing mandatory minimum sentencing drug laws. Those laws were developed to be weapons focused on Black communities, and they have caused their intended damage. Further, mandatory minimum sentencing laws have been used by prosecutors to further racially disparate outcomes. It should be of no consequence that individual prosecutors may not intend to use the laws in that sort of racist manner. The data shows us that the outcomes are racist, nonetheless. Likewise, even if individual legislators, today, do not maintain mandatory minimum sentencing laws because they intend to be explicitly racist, the fact remains that the laws have been maintained despite knowledge of their dubious development and present day disproportionate use against Blacks. Preserving such a system is to sustain the badges and incidents of slavery and to denying the Black community the equal protection of laws. Reconstruction taught us that, without a commitment to a constitutional protection against slavery and assurance of equal treatment, racism simply becomes repackaged--from slavery to Jim Crow, and eventually to the War on Drugs. Reconstruction Sentencing requires reclaiming the promise of Reconstruction through “a radical reorientation of our [constitutional] consciousness.” To truly repair and uproot requires courts to not only find sentencing laws that facilitate racial bias to be unconstitutional, but also requires courts to re-assess the constitutionality of policing practices based on racial profiling, laws regarding acquiring and executing warrants, and policies allowing for bias to infect prosecutorial decision-making. Though this paper does not purport to have a blueprint for what this sentencing reconstruction era will look like in full, it does assert that razing the current structure to start anew is the only true way to move from war to peace. Reconstruction also taught us that building atop a faulty foundation simply leads to a short-lived era of promise followed by centuries of continued subjugation.

Jelani Jefferson Exum is the Dean and Philip J. McElroy Professor of Law at the University of Detroit Mercy School of Law.

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