True Criminal Justice Makes Right Those Who Were Wronged

In October 2016, Chief Terry Cunningham, the former president and current deputy executive director of the International Association of Chiefs of Police (IACP), spoke in front of the thousands gathered at the organization’s annual conference and issued a surprising apology for what he described as “the historical mistreatment” of minorities by the police. Cunningham’s powerful stance, like those of other criminal-justice leaders who have made similar public statements, recognizes the detrimental impact of policies that were put in place decades ago on communities of color today.

But the response to Cunningham’s bold statement by Chuck Canterbury, National President of the Fraternal Order of Police, deserves equal attention. Canterbury, in downplaying Cunningham’s statement, told The Washington Post, “Proactive steps that address the real concerns — urban decay, jobs, education, housing, and the like — would benefit all Americans and we look forward to a dialogue of action — not just words — at this critical time in our history.”

Chief Cunningham’s statement should not be diminished, and one can agree with both of these positions at face value. It is important to acknowledge historical failings while acting to prevent the same mistakes going forward. However, before turning our attention to averting future harms, there is another crucial step that must first be addressed: What should be done for those who were directly affected by the harmful actions for which apologies are being issued, especially when those policies were put in place in the recent past and not a lifetime ago?

Take, for example, those affected by the War on Drugs. In the 1980s and 1990s, the crack cocaine epidemic in America’s cities, especially in communities of color, was met with a national response of mass arrests and incarceration. Whole generations of young black men were convicted for drug crimes because the country chose to respond with a tough on crime, law-and-order approach. Many of those imprisoned were low-level non-violent drug offenders who now have criminal records that cripple their future opportunities. Research has shown repeatedly that a criminal record significantly diminishes one’s future prospects and the ability to meet basic needs, including employment, education, housing, health, and healthy familial relationships. As former Houston Police Chief Charles McClelland described it:

“The drug war, or the war on drugs, has been somewhat a failure in this respect. It has disproportionately criminalized a certain segment of our population. Now, we certainly found that out after President Reagan's drug policies in the 1980s and mandatory sentencing, it has a disproportionate effect on young minority men. And what that has, it has a trickle-down effect, that a lot of young men who are minorities, in their early 20s, have a felony conviction on their resume, and now they're unemployable. And we wonder why they don't have jobs, they're not working, they're not contributing to society in a productive way, but we've put them in a position to where the odds are stacked against them.”

Contrast this with the current national response to the opioid crisis that is ravaging communities across America. The number of opioid deaths has quadrupled from 1999 to 2015, and there were three times the number of heroin-related deaths in 2015 compared to 2010. Lawmakers and advocates are rightfully concerned and use descriptions of the current crisis —  an “epidemic” — that harken back two decades. But the response to the opioid crisis is markedly different from that of the crack cocaine epidemic. Opioid addiction is being addressed through a public-health perspective, where treatment and prevention are emphasized and medication called Naloxone is being dispensed by first responders to prevent opioid-related overdoses. 

These approaches should be applauded and supported because they are thoughtful, comprehensive, and evidence-based strategies. The victims of the current drug epidemic, who are overwhelmingly white and from rural or suburban areas, could have become this generation’s low-level drug offenders. Instead, they are low level drug users. The change in that one word — from “offender” to “user” — means their futures will have a significantly better outlook. Many will have hospital records instead of criminal records. Thus, they will not become justice-involved and experience the attendant collateral consequences that will persist for years to come.

The pursuit of a public-health approach to deal with this and future drug crises is significant. It also serves as recognition that the previous enforcement-heavy approach was a mistake. Yet, there are those in our communities, especially African American men, who continue to experience the effects of policies that have been discredited.  

Policymakers have the ability to remedy this situation. On the federal level, lawmakers can reduce or eliminate harsh mandatory minimum sentences enacted during the War on Drugs. The disparity between sentencing for crack cocaine versus powder cocaine offenses, which disproportionately affect African Americans convicted of these crimes, can be eliminated. Even though the Fair Sentencing Act of 2010 reduced the disparity from a 100:1 to an 18:1 ratio, the current regime is unnecessary, harmful, and continues to be based on mistaken assumptions.

The current administration and jurisdictions throughout the country can also commute sentences of those who were sentenced under zero tolerance policies, similar to President Obama’s Clemency Initiative. And jurisdictions can expand efforts to seal and expunge the criminal records of those who have served their sentences and meet appropriate criteria so they, like those currently addicted to opioids, will not be debilitated by criminal histories from leading productive lives as citizens going forward. 

Chief Cunningham noted in his statement at the IACP conference that “while we…cannot change the past, it is clear that we must change the future…We must forge a path that allows us to move beyond our history and identify common solutions to better protect our communities.” More law-enforcement and criminal-justice leaders should follow suit and acknowledge the harms from previously enacted policies. But in order to move beyond our history, it is not enough to find common solutions for the future; we must also take proactive steps that remedy the mistakes of the past as well.

Ed Chung is the Vice President of Criminal Justice Reform at the Center for American Progress.