Malbreaux: Obama’s Unfinished Sentence

A call to black prosecutors in the age of Donald Trump.

by Tyler Malbreaux | 2/7/17 12:45am

All presidents — no matter their background and experience — are infinitely unprepared for the world’s highest office. That maxim of presidential fitness was still true when the junior senator from Illinois took office eight years ago. But former President Barack Obama inherited a Congress with a Democratic majority and a willingness to push through a progressive agenda, a willingness not fully realized since the Great Society of the 1970s.

But Obama did not just refocus debate around affordable healthcare, wealth inequality and other progressive causes. For African-Americans, Obama’s “blackness” alone symbolized a departure from old liberal politics of decades prior. Saying “my president is black” meant a connectedness to a political system that, for decades, had low levels of black participation. It meant that black issues were finally at the top of a progressive agenda. It meant ending the 100-to-one sentencing disparity between crack cocaine and powdered cocaine, a Nixonian law that targeted communities of color. It meant ending subsidization of the prison-industrial complex, an industry that received $3.8 billion from the federal government annually. It meant commuting the sentences of over 1,000 nonviolent offenders and giving them opportunity for employment through “ban the box” initiatives. And the young, inexperienced, junior senator from Illinois delivered on those promises — mostly.

Despite the progress, the impact of Obama’s prison reform efforts is contentious amongst the black intelligentsia. Philosopher Cornel West admonished Obama as a “counterfeit” progressive who is intimidated to talk about black issues. It is no secret that the White House positioned itself to remain moderate on racial rhetoric and instead projected an image of an America not divided on racial lines. Indeed, it was an image constructed for public acceptance, predicated on Obama’s successful 2004 Democratic convention address: a country not divided into “black America and white America … but a United States of America.” Yet, if the last presidential election has revealed anything, it is that the American people are as divided as ever.

Liberals must not give up the hope that Obama so aptly inspired in all of us. They must remember the good faith steps that Obama took to reduce overcrowding in the largest prison population in the world. But politicians will not sound the call for action. This is what leads me to ask change not of Congress but of black prosecutors who can bear the burden of advancing the nation toward a more just justice system.

The problem of mass incarceration does not start at the prison gates but during pre-trial motions, on behalf of prosecutors who are out of touch with the communities in which they work. Those communities that are represented in trial cases are mostly of color, but they often face white prosecutors. Out of the 2,437 elected prosecutors across the country, only 61 are black with 14 states having districts with only white prosecutors. That alarming figure puts the increase of sentencing rates from 1991 to 2010 into context in several ways. First, having only white prosecutors inevitably leads to systemic racial bias. District attorneys set the tone of a trial, choosing whether or not to pursue a felony charge rather than a lighter one or a plea bargain. If the prosecutor is white and prosecuting mostly African-Americans, the result can be a disparity in sentencing rates.

Prosecutors are given a great deal of discretion in deciding the racial makeup of a jury. In capital punishment cases, for instance, the selection of jury participants can increase bias by allowing the prosecutor to use allegedly implicit racial appeals during opening and closing statements. Lastly, district attorneys, especially in large cities like Chicago, Illinois and New York City, New York are often placed in high-profile political spotlights, thus making a robust political reputation a requirement. To pursue the natural career path to higher positions in state government, district attorneys are mandated to seem “tough on crime” — or, in other words, produce higher conviction rates.

While research on the political calculations of prosecutors is not precise enough to draw a clear conclusion, the effect of a “law and order” candidate’s appeal is undoubtedly tangible. Trump’s denunciation of felon voter rights, his promise to expand use of the death penalty and his stance against non-violent offender’s commutations should warn criminal justice reformers to find no solace in the new administration.

Thus, I call black lawyers across the country to complete Obama’s work toward ending mass incarceration. First, to black law students, civil rights lawyers and defense attorneys: reframe your perspective of what “law and order” means for your fellow brothers and sisters. While you are, at all times, an upholder and interpreter of the law, consider the sociopolitical environment in which those laws are birthed, adopted and enforced. Do not blind yourself to the reality that there is a prison-industrial complex, police brutality, unfair sentencing laws, inadequate legal representation and lack of political agency.

Secondly, to the 61 elected black prosecutors and every other black man or woman who represents the government in court: remain steadfast in facing the challenges inherent to being black in the legal world. Whether you face a dilemma that resembles that of Christopher Darden, who was labeled an “Uncle Tom” for prosecuting O.J. Simpson, or Anita Hill’s, whose legal career was imperiled after accusing then-Supreme Court nominee Clarence Thomas of sexual harassment, please remember the importance of your work. Finally, to all attorneys, remember that you may be the last line of defense for someone who falls victim to a justice system that is imperfect. History will look kindly upon Obama’s initial efforts to stymie mass incarceration. And it will look with judging eyes toward you to fix it.