Now that the presidential election is over, one of Bill Clinton’s first post-election acts should be to sign the clemency request sent to him by the NAACP Legal Defense and Educational Fund on behalf of Kemba Smith.

Kemba Smith is the Richmond, Va., woman given a mandatory 24-year prison sentence at the age of 24 for being on the periphery of a narcotics ring headed by her boyfriend. To hasten Kemba’s release, voters should lobby their Congressional delegation urging them to, in turn, lobby the lame-duck president who claims to be a friend of African-Americans. Tell members of Congress, as well as Clinton, that justice is ill-served by keeping Kemba behind bars for another nanosecond.

In many ways, Kemba is a victim of her own naiveté. In others, she was sentenced under a procedure so unfair that even Republican judges are complaining about it. There are many Kemba Smiths behind bars—non-violent, first offenders snared in an ill-conceived program designed to show that elected officials are getting tough on crime.

As David P. Baugh, a former attorney for Kemba, told Emerge magazine four years ago: "There are literally thousands of cases like [Kemba’s]. Every one of these children we’re locking up is going to come out one day. And what are we doing? We’re not solving the problem. It’s time we stopped getting tough on crime and start getting smart on crime."

Getting smart on crime, in part, means acknowledging that the country was sold a dumb idea.

In 1984, Congress passed the Sentencing Reform Act, which features fixed mandatory prison terms for certain crimes. The idea was to make sure defendants appearing before lenient judges would receive the same penalty that they would have received from more conservative jurists. In addition, penalties for drug possession and sale were stiffened. The law treats possession of one gram of crack as equivalent to 100 grams of powder cocaine, even though they are chemically indistinguishable. Because Blacks are more likely to be arrested for crack than powder cocaine, that distinction has racial implications.

Drugs are clearly fueling the prison explosion in the United States. In 1970, drug offenders made up 16 percent of the federal inmate population. By 1997, that figure had soared to 70 percent, most of them people of color. The U.S. has about 2 million people behind bars, representing a quarter of the world’s 8-million prison population. It costs more to house a prisoner—$20,000 to $30,000 annually—than to send him or her to college.

Even law-and-order conservatives now concede that passing the mandatory sentencing laws was a mistake. Supreme Court Chief Justice William Rehnquist says the laws "impose unduly harsh punishments for first-time offenders, particularly for ‘mules’ who played only a minor role in a drug-distribution scheme."

Most judges object to mandatory sentences because they strip them of the opportunity to weigh factors unique to each case before pronouncing a sentence. Instead of making sure the punishment fits the crime, judges are becoming robed paper shufflers, merely tabulating mandatory sentences.

Some on the bench are not going away quietly.
Lyle Strom of the U.S. District Court in Omaha, refused to impose the mandatory 30-year sentence in a case involving four Black defendants, saying the harsher penalty for crack amounted to racial discrimination.

Instead, he sentenced each defendant to 20 years.
U.S. District Judge Owen Forrester of Georgia announced that he would disregard the requirement that those in possession of crack be subjected to sentences that are 100 times harsher than for powder cocaine.

In New York, Judge Jack Weinstein stopped hearing drug cases, saying: "I simply cannot sentence another impoverished person whose destruction has no discernible impact on the drug trade."

Some judges have resigned over the issue.

In Kemba’s case, she will be in jail—under a mandatory sentence that even one federal official says was miscalculated too high—longer than most convicted murderers. And that has at least one Los Angeles-area judge upset.

In a letter to U.S. Rep. Ed Royce (R-Calif.), Orange County, Ca., Superior Court Judge James P. Gray expressed support for a presidential pardon of Kemba Smith. "I believe you know me to a conservative judge in your county and one who holds people accountable for their actions," Gray wrote in a letter last May. "But in fairness to everyone concerned, including the Criminal Justice System as well as the taxpayers who have been required to spend about $120,000 so far on [Kemba’s] incarceration, please help these decent people in Kemba Smith’s family who are campaigning for a presidential modification of this unjust sentence."