October 8, 2016
Ava DuVernay takes the 13th amendment by storm!
“The title of Ava DuVernay’s extraordinary and galvanizing documentary 13TH refers to the 13th Amendment to the Constitution, which reads “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States.” The progression from that second qualifying clause to the horrors of mass criminalization and the sprawling American prison industry is laid out by DuVernay with bracing lucidity. With a potent mixture of archival footage and testimony from a dazzling array of activists, politicians, historians, and formerly incarcerated women and men, DuVernay creates a work of grand historical synthesis.” Synopsis by Netflix.
See Netflix trailer here. Watch the 1 hr. 40 min. documentary here. Some of the featured interviewees in 13th include Marc Mauer, Bryan Stevenson, Van Jones, Glenn Martin, Dorsey Nunn, Shaka Senghor, Deborah Small, Lisa Graves, Angela Davis, Nick Turner, Jessica Jackson, Kung-Ji Rhee, Skip Gates, Sen. Cory Booker, Rep. Charles Rangel, and libertarian and conservative allies such as Craig DeRoche, Pat Nolan, Newt Gingrich, Grover Norquist, and more. Whew! This is a not to miss film.
Last year, as part of the American Constitution Society’s 2015 Constitution Day Symposium, I wrote a piece about lengthy sentences, using the 13th amendment as backdrop. I reprint it here.
Lengthy Sentences: Cruel and ‘Usual’ Punishment
September 16, 2015
*This post is part of ACSblog’s 2015 Constitution Day Symposium.
“Neither slavery nor involuntary servitude shall exist, except as punishment for a crime ….” This criminal punishment exception to the 13th Amendment is all the more brazen when one considers the inhumanity of lengthy prison sentences today – often handed out in assembly-line fashion, and dispensed more often to Blacks. Although we call our system a criminal justice system, its focus is punishment and it punishes very severely. Punishment’s correlation to enslavement remains in the Constitution and, as such, must be closely scrutinized.
As a staff attorney for the ACLU’s National Prison Project in the 1980s, I often cited in my conditions of confinement briefs Chief Justice Warren’s notable 1957 quote in Trop v. Dulles. His statement heralded the importance of considering the “evolving standards of decency that mark the progress of a maturing society.” This principle recognizes a people’s moral growth due to advancements in attitude and approaches.
During the height of the war on drugs with mandatory minimum sentences firmly in vogue, unnecessarily long sentences were robotically meted out with seemingly callous abandon. Shocking punishments over the past 30 years of 10, 20, 30 years and life imprisonment for drug offenses hardly raised an eyebrow. These commonplace sentences snatched mothers from children, men from loved ones, and furthered the destabilization of families and communities. Such punishments should offend our society’s standard of decency.
But they have not.
In 1991 the Supreme Court ruled in Harmelin v. Michigan that mandatory life imprisonment for a first-time drug offense did not violate the 8th Amendment’s ban against cruel and unusual punishment because, although the punishment was cruel, it was not unusual. It sounds ludicrous and left many of us flabbergasted.
The twisted rationale reminded me of McClesky v. Kemp, decided a few years earlier in 1987. There the Court declined to provide relief in a death penalty case despite overwhelming evidence of racial bias because the justices feared that the floodgates would be opened to widespread racial challenges in other parts of criminal sentencing as well.
Lengthy sentences are cruel, but they are usual. Systemic racism exists, but that is the norm. Fortunately, since Harmelin, the Supreme Court has seen fit to use the 8th Amendment to ban the beating by prison guards of a handcuffed prisoner (Hudson v. McMillian, 1992); to prohibit the execution of a mentally retarded person (Atkins v. Virginia, 2002); to bar the execution of a prisoner for crimes committed while a minor (Roper v. Simmons, 2005); and to abolish life without parole for minors who commit non-homicidal crimes (Graham v. Florida, 2010).
Public consensus had emerged in many of these issues, demonstrating evolving standards against the practices. Just as society has matured in not executing minors and the mentally challenged, public consciousness must evolve in the eradication of severe sentencing that has become routine. A common law, policy or practice can be just as detrimental as the unusual one. Chattel slavery was cruel and usual yet it was overturned. Jim Crow was cruel and usual yet it was overturned. Lengthy sentences for drug offenses are likewise cruel and usual and are given disproportionately to people of color. They must also be eradicated.
John Forte’s 14-year sentence, Kemba Smith’s 24-year sentence, and Clarence Aaron’s punishment of life without parole were all cruel, but unfortunately usual for drug cases. However, if each had been sentenced in Norway, they likely would have received no more than eight months, with a maximum penalty of 21 years, regardless of the nature of their crime.
Luckily, Forte, Smith and Aaron’s egregiously lengthy sentences were cut short by three different presidents as a legitimate exercise of their constitutional pardon power. Correcting the injustice of harshly severe, fiscally unsound and often racially discriminatory sentences through executive clemency is imperative. Regardless of prosecutorial intransigence or congressional delay, it is the remedy most immediately attainable and constitutionally shielded from reversal.
The Congressional Black Caucus Foundation is addressing issues of sentencing reform as part of its annual legislative conference this week. Appropriately, Democratic Rep. Maxine Waters’ panel on mandatory minimum sentences falls on Constitution Day, September 17. This year she is urging participants to petition the White House to increase its focus on granting clemency requests for those unfairly subjected to mandatory minimum sentences, particularly where old sentences have been discredited by newer law. Armed with his constitutional authority, President Obama should proceed full steam ahead to review and remedy these lengthy sentences as a fundamental public policy objective.
We as a nation have either numbed ourselves into accepting harsh punishments or just don’t care. Why haven’t our standards of decency evolved in this area? Is it because too many of us are unaware of how extreme sentencing in the U.S. has become? If we are to stunt the spiraling growth of the prison population and tackle rampant racism in our system of punishment, then we must express outrage and act to end unconscionably lengthy sentencing schemes. Regardless of whether we are motivated by fiscal, religious, big government, or racial concerns, such punishments should not only offend society’s decency, but should be unacceptable to our personal conscience as well.
This year marks the 150th anniversary of the 13th Amendment abolishing slavery and its exception as punishment for a crime. It is time we take the bull by the horns and reach a public consensus that today’s standard of decency has evolved to include an abhorrence to lengthy cruel, yet usual, sentences, and rectify the past through speedy passage of legislation abolishing mandatory minimums and executive action through widespread sentence commutations.