America has witnessed a historic election this year — alongside historic efforts to address systemic racism, sparked by the killings of George Floyd and Breonna Taylor at the hands of the police. Joe Biden, who may yet be announced president of the United States, has called to enact legislation ending mandatory minimum sentences, which is essential to eliminate racial disparities. But such laws have proven difficult to pass. Recently, the New Jersey legislature was unable to enact legislation ending mandatory minimums for certain crimes. In the short term, therefore, it is incumbent on prosecutors to play an active role against racially disparate outcomes.
Progressive local prosecutors, like Philadelphia District Attorney Larry Krasner, have instituted significant reforms. But these efforts do not impact other localities in Southeastern Pennsylvania and New Jersey. Meanwhile, particularly with regard to drug cases, the Department of Justice can undercut local efforts to end mass incarceration by pursuing harsh charges and sentences.
The DOJ must set a nationwide example on how to address racial inequities in the criminal justice system by limiting charges that carry harsh mandatory minimum sentences. It must also ensure that mitigating factors of all defendants — not just white-collar criminals — are appropriately considered at sentencing hearings. Further, DOJ must train prosecutors to reverse empirically shown longer sentences for Black defendants and create a culture where prosecutors do not aim to charge the most people or obtain the longest sentences. Attorney General Eric Holder made unprecedented strides in establishing the foundation for such reforms, but that progress was halted, and in some cases reversed, under the Trump administration.
Racial inequities persist. Studies show that approximately 45% of all federal inmates are charged with drug crimes, and about 75% of those inmates are Black or Hispanic. The harsh charges and sentences federal prosecutors often pursue against these defendants is one source of racial inequality in the system. In white-collar cases, even defendants who commit the most egregious crimes are generally charged with statutes that allow judges to impose whatever sentence they deem fair. During sentencing hearings, these criminals paint multidimensional pictures of their lives, including ways in which they support their family and community and challenges they faced that resulted in criminality. Even when a white-collar defendant commits a crime that appears to warrant a severe sentence, judges, rightly, are often convinced to be more lenient after learning about the defendant’s life that puts the criminality in context.
Blue-collar defendants do not lack for similar arguments. They are just denied the chance to present them. Many who are caught up in the criminal justice system have led difficult lives, were deprived of economic opportunity, education, and health care, and still made meaningful contributions to their communities. If their stories are conveyed to a judge, they could receive more lenient sentences.
Yet, many such defendants, even low-level violators, cannot ask for lenient sentences because DOJ policy requires prosecutors to charge them with crimes carrying mandatory minimums. These charges tie judges’ hands because they cannot sentence below the minimum period — often five, 10, or 20 years — even if they wanted to.
To address systemic inequalities, DOJ leadership should commit to charging mandatory minimum offenses only for the most serious crimes — for example, physical assaults or terrorism. There is no reason to treat blue-collar criminal cases differently from white-collar ones. Regardless of the type of crime, when the defendant is charged, there is no way for the prosecutor to understand the defendant’s history and context of his criminality to unilaterally decide that leniency is not merited.
Even if prosecutors bring some measure of fairness to their charging decisions, systematic racism in the criminal justice system will continue to result in unequal outcomes. In 2017, the United States Sentencing Commission found that in federal cases, Black male defendants received, on average, 19% longer sentences than comparable white offenders. A true commitment to justice requires actively reversing this empirically proven systemic racism.
DOJ must train prosecutors to eliminate racially disparate outcomes. For example, prosecutors must be taught to be vigilant in ensuring that a Black person caught selling drugs in Philadelphia receives the same punishment as a white person selling cocaine. A Black individual brandishing a gun in Camden should be treated no differently than a white individual acting similarly in other neighborhoods. Supervisors should scrutinize prosecutors’ sentencing recommendations and ensure that minorities are not treated differently.
Finally, prosecutors should not leave it to defense attorneys to ask for lower sentences. They should use the trust that courts place in prosecutors’ recommendations to highlight all factors in favor of leniency, including ones that are not traditionally considered or immediately apparent. A decision to seek merited leniency should be celebrated by DOJ leadership as just, consistent with the prosecutor’s oath to serve the public interest. By enacting such reforms, DOJ under any president can set an example for local and state prosecutors — and inspire lawmakers, including in Pennsylvania and New Jersey, to pass more progressive laws addressing disparities in the criminal justice system.
Vikas Khanna, a partner at Katten Muchin Rosenman LLP, was a federal prosecutor for 8½ years at the U.S. Attorney’s Office for the District of New Jersey. Ro Khanna represents the 17th Congressional District of California and serves on the House Oversight Committee.