“To Let the Punishment Fit the Crime”

The line is from Gilbert and Sullivan’s Mikado (My Object all sublime/ I shall achieve in time/ To let the punishment fit the crime…), and as always in G&S, it is said with a bit of irony, if not sarcasm. The same is true here. Johannes Mehserle, the white BART police officer who shot and killed African-American Oscar Grant on New Year’s morning in 2009, has been convicted of “involuntary manslaughter.” And so, though Oscar Grant’s murder was caught on several video cameras, and though the video showed that the unarmed Grant was not only lying face down when shot, but also had his hands bound behind his back, the jury concluded that Mehserle’s act was unintentional (his lawyers insisting, as did he, that he thought he was using his taser), and therefore deserved only the lesser conviction of involuntary or negligent manslaughter, not murder. The conviction carries a sentence of 2 to 4 years—though the judge could add up to 10 more years for the added offense of using a gun. He could also sentence Mehserle to probation—no additional jail time at all.

Now here, without going further into the rights or wrongs of the jury’s decision (no Blacks were seated on that jury; the judge ruled out first-degree murder), it is important to understand this verdict in context. A black man is shot to death by a white man who has pledged to protect the public. The black man is bound and face down on the ground. The murderer’s culpability is undisputed. And yet, the killer is looking forward to a sentence that pales in comparison not simply to sentences in other murders, but in comparison to millions of convictions of black men in America for non-violent crimes like drug possession. To get some sense of the outrage this inspires in the African American community, it is necessary to read The New Jim Crow, by Michelle Alexander (New Press: 2010). In fact, reading the New Jim Crow should outrage any American, even absent the Mehserle verdict. But in the context of this flagrant example of the differential “justice” in our system, well, outrage simply doesn’t cover it.

Here is some of what Michelle Alexander tells us. First, the system of mass incarceration of African Americans—a system put in place mostly as a result of the War on Drugs initiated by the Reagan Administration in 1980 and more specifically in its 1986 and 1988 legislation—is no less than a modern system for controlling black (and brown) men. It is the New Jim Crow—the old one having been ended, finally, by the 60’s Civil Rights movement and the Supreme Court’s Brown v. Board of Education decision in 1954. So, of the approximately 2.3 million people in American prisons and jails, about ½ million are there for a drug offense (compare today’s 500,000 to 41,000 drug-related felons in 1980). Further, of the more than 31 million!!! people arrested for drug offenses since this “war” began, most are NOT charged with dealing drugs; in 2005, for example, “4 out of 5 drug arrests were for possession, and only 1 out of 5 for sales.” So what, you may say, that’s justice: use drugs and go to jail. But it’s not that simple. As Alexander writes,

…in the drug war, the enemy is racially defined.…Human Rights Watch reported in 2000 that, in seven states, African Americans constitute 80 to 90% of all drug offenders sent to prison. In at least 15 states, blacks are admitted to prison on drug charges at a rate from 20 to 57 times greater than that of white men….Although the majority of illegal drug users and dealers nationwide are white, three-fourths (¾) of all people imprisoned for drug offenses have been black or Latino.

What’s more, the penalties for “crack” cocaine (used primarily by blacks), as opposed to powder cocaine (used primarily by whites) are biased in the extreme: 500 grams of powder gets a 5-year mandatory sentence; 5 grams of crack gets a 10-year mandatory—a 100 to 1 ratio (500 grams to 5 grams). Judge Clyde Cahill of the Federal District Court of Missouri, himself an African-American, ruled in the case of Edward Clary, that this ratio was discriminatory, but his ruling was struck down by the Eighth Circuit Court of Appeals. The result was that Clary, the 18-year old first-time violator in the case, was given and served 4 years by Judge Cahill, but upon the reversal by the Circuit Court, was forced back to jail to serve out his ten-year mandatory sentence.

The story of how this “war” got started, including the accompanying penalties for “felons” that renders them literally second-class citizens (5.1 million now on probation or parole), makes for fascinating reading, and I would recommend Alexander’s book to anyone who wants reality instead of TV propaganda. Here, I want to focus on the inequities in sentencing because that is what’s behind the rage hurled at the Mehserle verdict. The Anti-Drug Abuse Act of 1986, for starters, initiated those mandatory minimum sentences for “distribution of cocaine, including far more severe punishment for crack—associated with blacks—than powder cocaine, associated with whites.” The 1988 Anti-Drug Abuse Act upped the ante even more, including the death penalty for serious drug-related offenses and a new 5-year mandatory minimum for “simple possession of cocaine base—with no evidence of intent to sell.” These mandatory sentences for possession were new, writes Alexander: up till that time, one year in prison was the maximum for possessing any amount of any drug.

The effects were immediate. And were immediately carved in stone by the Supreme Court. In 1982, “the Supreme Court upheld 40 years of imprisonment for possession and an attempt to sell 9 ounces of marijuana.” Somewhat later, the same Supreme Court in Hamelin v. Michigan upheld a life sentence for “a defendant with no prior convictions who attempted to sell 672 grams (approx. 23 ounces) of crack cocaine.” Though these two cases involved drug sellers, most of those hit with mandatory minimums, according to Alexander, are not the “drug kingpins” we are led to imagine. Weldon Angelos, for example, a 24-year-old record producer who possessed a weapon he did not use or threaten to use, was “sentenced to life for 3 marijuana sales, due to the mandatory minimum of 55 years under the law.” The judge noted even as he sentenced him that it was “unjust, cruel, and even irrational.” Another judge, William Schwarzer, “choked with tears” over the sentence he had to impose on Richard Anderson; Anderson, a longshoreman and first-time offender, got “10 years in prison without parole” not for selling or even possessing drugs, but for “what appeared to be a minor mistake in judgment in having given a ride to a drug dealer” who got caught.

That’s 10 years in prison for giving a dealer a ride! Johannes Mehserle is looking at 2 to 4 years for killing an unarmed black man. Punishment to fit the crime?

And yet, the Supreme Court, our court of last resort, the great arbiter of fairness, upholds this kind of savagery, this out-and-out racism. Consider, as Michelle Alexander forces us to consider: Professor David Baldus, of the University of Iowa Law School, (in the interest of full disclosure, Baldus was a fraternity brother of mine) led a study comparing sentencing in murder trials in Georgia. The study discovered that:


…defendants charged with killing white victims received the death penalty 11 times more often than defendants charged with killing black victims. Georgia prosecutors seemed largely to blame for the disparity; they sought the death penalty in 70% of cases involving black defendants and white victims, but only 19% of cases involving white defendants and black victims…and that defendants charged with killing white victims were 4.3 times more likely to receive a death sentence than defendants charged with killing blacks. (p. 107)

A trial appeal, by Warren McCleskey in Georgia, used the Baldus study to claim racial bias in violation of the 14th Amendment to try to reverse the death penalty conviction. The case, McCleskey v. Kemp, reached the Supreme Court in 1987. But the Supreme Court “ruled that racial bias in sentencing, even if shown through credible statistical evidence, could not be challenged under the 14th Amendment” unless McCleskey could prove that the prosecutor in his case “had sought the death penalty because of race, or that the jury had imposed it for racial reasons.” That is, the Court said that clear statistical evidence, as provided by the Baldus study, did not prove unequal treatment, and thus did not violate the 14th Amendment. This meant that the prosecutor or the jury would have to openly admit they were racially biased—an impossibility not only because few would admit such a thing, but also because litigants are barred from even attempting to discover the prosecution’s motives. In short, statistical proof of racial bias was allowed and is allowed to stand under the court’s ruling.

Add to this the consistent rulings of the Supreme Court in allowing racial profiling by police officers by giving them “discretion” in deciding whom to stop and search without a warrant—using “pretext stops” where a minor traffic violation becomes a pretext to search for drugs (where the driver “looks” like a dealer); or “consent,” where police who get a driver’s consent (most people fear refusing) can search for any reason or no reason at all—and you get rampant violations of 4th Amendment protections, and American jails filled to capacity with black and brown drug violators. In the Ohio v. Robinette case, for example, where police stopped a black driver for speeding, turned on a video camera, and asked whether he was carrying drugs and would consent to a search, the driver consented. The police thereupon found a small amount of marijuana and a single meth pill. In reviewing the case, the Ohio Supreme Court struck down the conviction, saying police must advise motorists of their right to refuse before asking them for consent to search their vehicles. At the Supreme Court, however, this “advise” requirement was struck down as “unrealistic.” No one needed to be informed of the right to refuse before being solicited for consent to a search. And in Atwater v. City of Lago Vista, the Supreme Court went even further, ruling that even when a motorist does refuse to consent to a search, the police can arrest him anyway.

What results is what pertains in Illinois, where an amazing 90% of those imprisoned for drug offenses are African-American; where “the total population of black males in Chicago with a felony record (including both current and ex-felons) is equivalent to 55% of the black adult male population and an astonishing 80% of the adult black male workforce in the Chicago area.” Nor are the effects limited to the streets. Politically, African Americans are being disenfranchised at a staggering rate, with 1 in 7 black men nationally having lost the right to vote as ex-felons. Socially, moreover, black people, especially black men, literally define criminality, and crime is defined as a black problem. However, since we live in a putatively “colorblind” society, (there are, after all, that small percentage of whites imprisoned for drugs; there is, after all, that African-American President) this entire problem can be suppressed, ignored and denied. ‘It’s not black people we target; it’s criminals.’

Only when we get to see, graphically, how white murderers like Johannes Mehserle are treated do we begin to notice that something is rotten. Only when we are exposed, chapter and verse, to the way the system is constructed to exploit every avenue for targeting black and brown men, and how that targeting is continually sanctioned by the highest court in the land, do we begin to understand how obscene it all is—how obscene for TV commentators (like those commenting on the “riot” after the Mehserle verdict) to wring their hands about a few windows broken while they ignore the broken lives, the broken families, the broken cities, the deliberately broken system that allows and encourages racism to maintain its death grip on millions, so the rest of us can prate on about democracy, about our revered system of “equal justice for all.”



Lawrence DiStasi