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Pardons Aren’t Policy

Before all the North Korea news hit, the last few weeks seemed to show another surprising turnaround for President Trump: some sympathy for criminal justice reform.

After a visit from Kim Kardashian, the president commuted the sentence of Alice Marie Johnson, a great-grandmother serving a life sentence for a first time, non-violent drug offense. Then he said he’d reach out to the NFL players taking a knee to protest police brutality — players he’d spent months antagonizing.

The president insisted that he understood the driving purposes behind the NFL protests, even saying players could advise him on whom to pardon next.

That’s a welcome gesture, but it also shows that Trump doesn’t really understand the issue. Individual pardons can’t replace policy in addressing racial inequity. For every individual Trump might pardon, thousands more will face arrest and incarceration for the same crimes.

In New York City in 2017, where black Americans were about 24 percent of the population, they were 58 percent of those stopped by police. In the first half of that year, the ACLU of Pennsylvania found that black Americans were 69 percent of stops in Philadelphia, despite constituting 48 percent of residents.

Black Americans’ interactions with law enforcement are more likely to be deadly, too. The Washington Post found that black Americans, who comprise 13 percent of the national population, were nearly a quarter of those shot by police in 2017.

Instead of just pardoning a few people, President Trump could ask the Department of Justice to reverse course by entering into consent decrees — reform agreements, basically — with police departments with histories of racial misconduct and brutality.

Existing inequities follow black Americans once they come under the grip of the criminal justice system.

The U.S. Sentencing Commission concluded that black men receive sentences that are an average of nearly 20 percent longer than “similarly situated” white men. And the NAACP Legal Defense and Educational Fund found that, as of July 2016, black Americans were over 40 percent of those on death row.

The Department of Justice currently mandates blind reviews of capital punishment cases. Beyond just pardons, Trump could extend those reviews to other sentences to reduce bias.

Drug enforcement and sentencing, including the now-diminished 100-to-1 crack to cocaine mandatory minimum sentencing disparity, are often regarded as the most extreme example of the racist underpinnings of the criminal justice system.

Although black Americans are no more likely to use or sell drugs than their white counterparts, they’re nearly 3 times more likely to be arrested for drug offenses — and 6.5 times more likely to be incarcerated. Mandatory minimum sentences, which have been identified as one of the main drivers of mass incarceration, impact black Americans nearly twice as often as white Americans.

From here, the president could persuade lawmakers in Congress to reform those mandatory minimum sentences. He could encourage Attorney General Jeff Sessions to rescind his memorandum directing federal prosecutors to “charge and pursue the most serious, readily provable offense,” against non-violent drug offenders.

At the very least, he could abandon his own embrace of punitive drug rhetoric and policy.

Unfortunately, I doubt President Trump will do any of these things. I’m not even sure he’ll make good on those pardons he’s promised to consider.

This is, after all, a man who endorsed police brutality, called for the death penalty for drug dealers, and pardoned the racist Sheriff Joe Arpaio. Opportunities to stoke racism seem far too politically expedient for this president.

But for anyone serious about it, including Trump, the road forward is clear.

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