Unfair Sentencing a Disaster
 
How do you beat the odds?

That is a question you often ponder when you're the father of an African-American son. Even when you'd rather devote your mental energy toward other pressing considerations, it returns, a nagging doubt. The question can insert itself at the most inopportune moments, as it did last week while I played with my mischievous youngster.

Like dads of any ethnic background, I imagine a bright future for my child, rich with accomplishments and acclaim. Nothing too ambitious, understand. One Nobel Prize is plenty, thank you, and an Olympic bronze medal would please me just as much as a gold one. While we played, however, images of handcuffs and orange jumpsuits interrupted my visions of trophies and honorary doctorates. You see, my son was born in 2001. According to a new report by the American Bar Association, an African-American boy born in that year has a 1-in-3 chance of being incarcerated in his lifetime.

You don't have to have a 3-year-old son to be distressed by such statistics. You don't have to have four sons, as I do, to be reminded daily -- in some way, shape or form -- that in some cities more than half the young African-American men are under the supervision of the criminal justice system. You don't have to be black or male to believe there's something deeply disturbing about such percentages. You don't even have to be a liberal.

When it comes to incarceration, "our resources are misspent, our punishments too severe, our sentences too long." Those are the sentiments of U.S. Supreme Court Justice Anthony Kennedy, delivered during an address to the American Bar Association in April 2003. In an extraordinary speech, he went on to lament both the economic and human costs of keeping more than 2 million Americans behind bars. It was time, he suggested, for the ABA to "help start a new public discussion about the prison system."

In October 2003, the ABA formed the 14-member Kennedy Justice Commission to do just that. Its findings, released recently, noted a sixfold increase in the federal and state prison populations between 1974 and 2002 -- from 216,000 to 1,355,748. The economic costs have been huge. Between 1982 and 1999, direct expenditures on corrections by federal, state and local governments increased from $9 billion to $49 billion.

The human costs have also been astronomical, and disproportionately harmful to racial minorities. This imbalance derives mostly from mandatory minimum sentences for drug crimes, which the ABA commission identifies as "the largest driver of expanding prison populations." In 1999, for example, African-Americans constituted 13 percent of drug users, the ABA study indicated. In that same year, they constituted 35 percent of drug arrests, 53 percent of drug convictions and 58 percent of those in prison for drug offenses. "Mandatory minimum sentences," said commission chair Stephen Saltzburg, "tend to be tough on the wrong people."

The commission recommends repealing the minimums, eliminating ethnic and racial profiling as official policies, and putting more money into drug treatment efforts.

In addition to addressing disparities in sentencing, the proposals take aim at our justice system's glaring failure to rehabilitate those whom it has chosen to punish. As evidence, the commission cites figures from the Criminal Justice Institute, which put the national recidivism rate in 2000 at nearly 34 percent.

It's easy to dismiss our prisons' rapidly revolving doors as proof that some convicts are simply beyond repair, but Justice Kennedy cautions against such notions. He told the ABA: "To be sure, the prisoner has violated the social contract; to be sure, he must be punished to vindicate the law, to acknowledge the suffering of the victim, and to deter future crimes. Still, the prisoner is a person; still, he or she is part of the family of humankind." To reinforce that integral connection, the commission advocates creating programs that will make it easier for released inmates to re-enter society.

The ABA will consider officially endorsing the commission's report at its annual meeting in August. Meanwhile, those of us who strive to keep our African-American sons on the correct side of the law will continue to raise them with love and discipline, ever mindful of their responsibilities as citizens, ever aware of the fragility of their freedom. We may even entertain the hope that those who stubbornly cling to narrow notions of law and order will join Justice Kennedy in acknowledging that "the phrase 'tough on crime' should not be a substitute for moral reflection."

We realize, of course, that those are tough odds too.