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Thoughts on racism and criminal justice reform

By Scott Tibbs, May 22, 2017

We badly need criminal justice reform, and one of the areas where we need reform is mandatory minimum sentences for various crimes. As Rand Paul pointed out, we have seen far too many injustices resulting from mandatory minimums. This is why we are not only seeing bipartisan agreement on reforming mandatory minimums, but agreement across the ideological spectrum, from right to left and everywhere in between. Not everyone agrees, including President Donald Trump's attorney general.

We should not ignore the context for mandatory minimums though. These laws came about at least in part because of concern that judges were far too lenient with some criminals. When judges fail in their duty to protect the general public by letting murderers and psychopaths walk free to kill, maim and rape again, there is going to be a reaction against that failure. Mandatory minimums are that reaction.

The problem is that the law is a very blunt instrument. Some cases require a harsher punishment, but in other cases a less severe punishment is called for. A judge with wisdom and discernment would be able to make those distinctions, but harsh mandatory minimums take away this discretion and put people behind bars for far longer than they should be there. This doesn't just unjustly harm the person going to prison, but unjustly harms their families and communities.

That said, this is not necessarily racism. A disparate impact is not proof that the goal is to harm blacks, or that supporters of mandatory minimums believe blacks are inherently more violent or dangerous.

Some have argued the War on Drugs itself (which produced so many of the mandatory minimums) is thinly-veiled racism. It is not. Much of the concern over drugs (especially among black leaders) is the destruction drugs and drug-fueled violence did to black communities. That is the opposite of racism.

But while the War on Drugs itself is not racist, Are there aspects of the war on drugs that are heavily tinged with racism? Of course there are. Marijuana criminalization was pushed by appealing to racist fears of blacks and Hispanics, and more myths of black "cocaine fiends" were used to push harsher punishments (especially for crack cocaine) in the 1980's. We should not be blind to this history.

But after decades of the War on Drugs and mandatory minimums being so common that many just reflexively support them, we need to be very careful in assigning nefarious motivations that make bipartisan reforms more difficult by inflaming partisan divisions. When you call someone a racist, the opportunity for dialogue is over as they switch into self-defense mode. You cannot convince someone when you attack in that manner.

Donald Trump threatens to reverse, derail or at least stall efforts at reforming the War on Drugs generally and mandatory minimum sentences specifically. But there is still enough support for reform on the Right to keep moving forward. Making the issue needlessly partisan and launching needless assaults on people's character is not the way to maintain that support.

Are Leftists genuinely committed to criminal justice reform? If so, they need to resist the urge to play the "racism" card. The federal government is controlled by Republicans and most of the states are controlled by Republicans. It is simply not possible to get reforms through without help from conservative and libertarian-leaning Republicans who recognize the harm that these policies have caused.

Can we please not waste this opportunity? Lives are at stake here!