Abstract

Excerpted From: Jelani Jefferson Exum, Toward Reconstructing Sentencing: Thoughts on Effectuating Racial Justice Through Federal Drug Sentencing Amendments, 38 Federal Sentencing Reporter 91 (May 2026) (55 Footnotes) (Full Document)

In 2021, I published the article “Reconstruction Sentencing: Reimagining Drug Sentencing in the Aftermath of the War on Drugs.” Though written only four years ago, I conceived of that article within a discourse that has already changed dramatically. At that time, I referred to the United States as being in a “moment” in which “anti-racism rhetoric ha[d] been adopted by many, with individuals and institutions pledging themselves to the work of dismantling systemic racism.” I also wrote that “the world has been consumed by a viral pandemic, social unrest, increased political activism, and a history-changing presidential election.” Of course, concerns of spreading viruses, social discord, fervent political energy, and a historic presidency are still true in 2025. Rather than the social and political momentum moving toward antiracism, however, we are now experiencing these phenomena in the midst of backlash against the work of dismantling systemic racism. Today, individuals and institutions—from shoppers to students to universities to law firms—must choose whether to back away from their previously declared dedication to antiracism or to double down and stay true to their professed values. I could similarly advocate for meaningful drug sentencing reform without couching it within a racial equity framework. Instead, I choose now to double down on advancing antiracism.

I am grateful that the U.S. Sentencing Commission gave me the opportunity to center racial justice in the federal drug sentencing reform conversation. As I stated in my written statement to the Commission for the March 12, 2025, public hearing regarding proposed amendments to the drug sentencing guidelines:

My nearly 20-year career as a sentencing scholar has focused on closing the gap between the ideals of sentencing purposes and the realities of sentencing practices and outcomes, with the goal of ameliorating racial disparities in punishment. That gap between sentencing purposes and sentencing practices is disturbingly wide in the case of federal drug sentencing, and the resulting racial disparities are unconscionable.

The Sentencing Commission should use its authority to amend federal drug sentencing with the goal of repairing those unconscionable disparities. A Reconstruction model of sentencing offers the perspective to guide that valuable work.

[ . . . ]

Though a Reconstruction framework offers a meaningful way of understanding the need for antiracist sentencing reform, it also comes with a historical warning. Reconstruction lasted a mere decade and was then followed by a century of legally sanctioned, race-based, Jim Crow segregation. The great promise of the Reconstruction Amendments and Reconstruction Acts was vulnerable to the Supreme Court’s commitment—or lack thereof—to interpret new constitutional provisions in a manner that would truly advance racial justice and challenge notions of White supremacy. The promise of true equality could not survive without a willingness to reconstruct hierarchical systems. Even Representative Stevens’s impassioned defense of Reconstruction revealed this weakness. His full quote supporting Black equality reads as follows (with the White supremacist acceptance italicized):

But it will be said, as it has been said, “This is Negro equality!” What is Negro equality … ? It means … just this much, and no more: every man, no matter what his race or color; every earthly being who has an immortal soul, has an equal right to justice, honesty, and fair play with every other man; and the law should secure him these rights. The same law which condemns or acquits an African should condemn or acquit a white man. The same law which gives a verdict in a White man’s favor should give a verdict in a black man’s favor on the same state of facts. Such is the law of God and such ought to be the law of man. This doctrine does not mean that a Negro shall sit on the same seat or eat at the same table with a white man. That is a matter of taste which every man must decide for himself.

The lesson in Stevens’s acceptance of social inequality even as he argued for advances in legal equality remains relevant today. Without a full acceptance of the depths of racism, legal changes do not equate to a true reconstruction. Rather, any changes will simply be a repackaging of systemic racism that will inevitably reemerge in some other form. Slavery was interrupted by Reconstruction, but its racist roots flourished in the form of Jim Crow. Jim Crow was struck down during the civil rights movement, but the War on Drugs fertilized the racial bias that was never truly uprooted. This bias continues to infect every stage of our criminal justice process, including sentencing.

I am greatly encouraged by conversations that may one day move federal drug sentencing to lessen the effect of racial bias by reducing the length of incarceration for low-level participants. As I wrote to the Commission: “By reducing the maximum base offense level and increasing opportunities for function to play a role in sentence reductions, the Commission can also lessen the opportunity for sentencing disparities based on race.” I should have said the Commission can lessen the impact of racial sentencing disparities, rather than the opportunity. Proposed amendments do not eliminate pervasive racial bias. Dr. Henry Louis Gates Jr. has explained that the Reconstruction Era was meant to “[repair] what the war had broken apart while simultaneously attempting to uproot the old slave system and the ideology underpinning it that had rationalized the process of making property of men a 'black and white’ issue.” With that same understanding, true Reconstruction sentencing requires uprooting the ideology that has underpinned drug sentencing for so long—the misguided notion that we can punish our way out of drug crime, and that the collateral consequences borne by Black, Brown, and underserved communities are simply the unfortunate costs of war. We only begin to meaningfully reconstruct the current, flawed approach to drug sentencing by refocusing on sentencing purposes while explicitly centering the costs of harms to all humans equally. I argue that “[s]uch an approach would move away from lengthy incarceration and focus instead on alternative court programs and partnerships with entities that address substance use disorders as well as those that increase economic opportunities in underserved communities.” That is the only way to reconstruct sentencing to withstand the next wave of societal backlash. That is the only way to fulfill the Sentencing Commission’s mandate to achieve just punishment. It is actually an antiracist mandate because justice requires antiracism. And on that, I double down.

Jelani Jefferson Exum is Dean and the Rose DiMartino and Karen Sue Smith Professor of Law at St. John’s University School of Law.