By Udi Ofer
Last week, Americans got a front row seat to the two systems of justice we have in America, one reserved for rich white men and the other for communities of color. Unfortunately, though, many people may have drawn the wrong lessons from these examples.
On Thursday, Paul Manafort, a white man, got a 47-month sentence for massive tax and bank fraud, far less than the 24 years recommended by prosecutors. People were outraged, rightfully pointing out that every day in America, Black people face harsher sentences for less serious offenses. Many even called for Manafort to receive more prison time as a way to address this inequity.
One day later, another high profile case hit the news, just in time to pour salt on the Manafort-sentencing wound. Jussie Smollett, a Black man, got indicted on 16 felonies for lying to the police, meaning that he could face up to 64 years in prison if convicted.
So here in plain sight was the double standard so many of us decry. A rich white man gets leniency, while a Black man, an actor notwithstanding, gets the book thrown at him.
The outrage over these two systems of justice is entirely justified. There is systemic racism in our nation’s criminal legal system, where Black people are incarcerated at six times and Latinos at threes time the rate of non-Latino whites. One in three young Black men can expect to serve time in prison if current trends continue. To put this in context, the United States imprisons a larger percentage of its Black population than South Africa did at the height of apartheid.
These disparities are not explained by offenses committed, but are a product of the extraordinary discretion afforded to the police, prosecutors, and judges. Manafort receiving a lenient sentence while Smollett faces harsh treatment exemplifies the discretion afforded to law enforcement and the judicial system. In one, a judge exercised discretion to show leniency, while in the other, a prosecutor exercised discretion to seek harsh punishment.
But the solution to this inequity is not harsher sentences for people like Paul Manafort. If we want to end our nation’s addiction to mass incarceration, then we must wean ourselves off long prison sentences as a default solution to punishing crime. To end mass incarceration, in other words, the criminal legal system should start treating everyone the way it currently treats rich white men.
Sentences should go down, and prosecutors should stop overcharging. We must end the status quo, which assumes that incarceration is the solution to lying to the police or that a four-year prison sentence for fraud is somehow light punishment.
In response to the Manafort sentencing, presidential candidate Amy Klobuchar tweeted, “Crimes committed in an office building should be treated as seriously as crimes committed on a street corner.”
She is right that both should be treated the same, but if she meant that the solution is longer sentences for people like Manafort, then she is wrong. The solution is to lower sentences, and to treat all people, including people arrested on the “street corner,” with less prison and more alternatives to incarceration.
Udi Ofer is the Deputy National Political Director of the ACLU and Director of the ACLU’s Campaign for Smart Justice.