Righting Historical Wrongs Through Clemency
2/28/2014, 8:19 p.m.
From the kangaroo courts and lynching laws of yesterday to the still lingering crack vs. powder-cocaine disparity today, miscarriages of justice have been an ever-present feature of the U.S. criminal punishment system. However, there has always been the power to correct mistakes through clemency — a catch-all term for several related procedures, including shortening sentences through commutation, eradicating civil disabilities through pardon, or expunging convictions through exoneration.
1923. Marcus Mosiah Garvey, the charismatic founder of the Universal Negro Improvement Association (UNIA), was unjustly convicted of mail fraud. Garvey was one of the first targets of J. Edgar Hoover, who had recently taken the helm of what would later be known as the Federal Bureau of Investigation. Hoover harbored a personal vendetta against the black leader and was relentless in his goal to discredit and lessen his influence. Although President Calvin Coolidge eventually commuted Garvey’s sentence, the UNIA to this day demands a complete expunging of Garvey’s unwarranted conviction through both an exoneration and a government apology for violating his rights and smearing his name.
1931. Nine black teenagers were wrongfully accused of the gang rape of two white women in Alabama. The cases became known as the “Scottsboro Boys.” They included fabricated testimonies, all-white juries, hasty trials, mob violence and media sensationalism. Originally sentenced to death, the Scottsboro Boys were tried two more times and, despite the retraction of testimony by one of the accusers, were convicted two more times (although the death sentence was set aside). By 1989, the men were all deceased — after leaving imprisonment either through parole, escape or death, and after languishing for years in a deplorable rat-infested prison. The shameful case of the Scottsboro Boys did have one positive effect: it proved pivotal in changing the policy of excluding blacks from juries in the South. In 2013, more than 80 years after their trials, the Alabama Board of Pardons and Parole expunged the wrongful convictions with posthumous pardons.
1989. Five Harlem teenagers (four African-American and one Latino) were arrested, unlawfully interrogated and convicted of the gang rape and brutalization of a white jogger in Central Park. Known as the “Central Park Five,” the youth were reportedly subjected to law enforcement and prosecutorial misconduct, resulting in coerced confessions. Reminiscent of the Scottsboro Boys’ case, media sensationalism abounded (remember “wilding”), fueling the belief that they were guilty well before their trials. The teens renounced their false confessions and declared their innocence to no avail. The Central Park Five spent years in prison — until the real rapist came forward, confirmed by DNA evidence. Their sentences were vacated and they were exonerated. Settlement of their civil suit finally appears imminent, after years of delay.
1996. College student Kemba Smith got caught up with the wrong guy and was sentenced as a first time nonviolent drug offender to 24 and a half years in federal prison. The United States has moved from overt racist lynching and explicitly blatant discrimination as the order of the day to mass incarceration as its punishment of choice. Unlike the environment the Scottsboro Boys found themselves in, today’s racism is subtly hidden in statutes, laws, policies, and procedures that look fair, but have a racially discriminatory impact. Mandatory minimum sentences, where a judge is required to impose a fixed number of years that cannot be deviated from, exemplify this. These sentences have been a major driver of the prison population, which has now exceeded two million people behind bars. For nearly 25 years, the disparity in penalties between crack and powder cocaine was perhaps the most egregious example of the severity and unfairness of mandatory minimum sentences. Five grams of crack cocaine, the weight of a couple of sugar packs, yielded the same five-year sentence as 500 grams (more than a pound) of powder cocaine. This 100-to-one quantity ratio disproportionately impacted African-Americans, who were arrested more often on crack cocaine charges (if crack flourished in Harlem, powdered cocaine flourished on the Upper East Side) — meaning a black kid with a little crack cocaine could spend more time in jail than a white kid with a whole lot of powdered cocaine.