It is regrettable that the legend of the "Jena Six" has for many become the leading symbol of the grave injustices to African-Americans that pervade our nation’s penal system. The legend is partly false. And the notion that racism is the main reason for the injustices to hundreds of thousands of black defendants around the nation is entirely false.

To be sure, there is still too much racism among prosecutors, judges, and jurors. But this is far less widespread and virulent, even in Jena, La., than Al Sharpton and Jesse Jackson — the media-anointed (albeit, repeatedly discredited) African-American "leaders" — like to pretend. There are still too many unwarranted prosecutions of innocent minority (and other) defendants, as detailed in my August 4 column, "Innocents in Prison." But the vast majority of those prosecuted are guilty, as may prove to be the case with some or all of the Jena Six.

Rather, the heart of the racial injustice in our penal system is the grossly excessive punishment of hundreds of thousands of nonviolent, disproportionately black offenders whose long prison terms ruin countless lives and turn many who could have become productive citizens into career criminals.

The Supreme Court heard two cases on October 2 that focus on a relatively small piece of this problem: how much discretion federal district judges have to depart from federal sentencing guidelines that provide savagely severe prison terms for small-time drug offenders, among others. The most savage penalties of all are for people — overwhelmingly, black people — caught with fairly small amounts of crack cocaine.

But the justices, hemmed in by wrongheaded mandatory sentencing laws, are merely rearranging deck chairs on the Titanic, no matter how they rule. Nothing that the Court will ever do could make much of a dent in the overly punitive regime that has sent the number of prisoners in this country soaring to 2.2 million, more than in any other nation. This represents more than a sixfold increase in the number of incarcerated Americans since 1970, when it was 330,000. More than 40 percent of these prisoners are black. And according to a recent study by the nonprofit Sentencing Project, 500,000 of the 2.2 million are locked up for drug crimes, and a majority of the convicted drug prisoners have no history of violence or high-level drug-selling.

Such are the fruits of decades of tough-on-crime posturing by politicians. Now a bipartisan group in Congress is pushing to alleviate some of the most excessive penalties, especially in crack cases. This is a small blessing. But the proposed tinkering is a far cry from the enormous policy changes needed.

A more hopeful sign was a Joint Economic Committee hearing set by Sen. Jim Webb, D-Va., for October 4 titled "Mass Incarceration in the United States: At What Cost?"

But in the end, only a vast change of attitude on the part of the voters, and in turn among the state and federal officials they elect, could return sanity to the system.

With our bloated incarceration rates, especially for nonviolent drug crimes, "the system takes men with limited education and job skills and stigmatizes them in a way that makes it hard for them to find jobs, slashes their wages when they do find them, and brands them as bad future spouses," as Christopher Shea wrote in a September 23 column in The Boston Globe. "The effects of imprisonment ripple out from prisoners, breaking up families and further impoverishing neighborhoods, creating the conditions for more crime down the road."

Our penal system visits these dire consequences on a staggeringly high percentage of the African-American population. More than 22 percent of all black men in their early 30s and more than half of the subset who dropped out of high school have spent time behind bars. These percentages are far higher than they were during the worst era of American apartheid.

Is this situation the fault of white racism? Well, the main reason that an overly punitive system has such a severe effect on black men is that they commit hugely disproportionate numbers of crimes. As The Economist points out, "Young black men are seven times more likely to be jailed than whites, but they are also seven times more likely to murder someone, and their victims are usually black."

The absurdly excessive penalties for possessing or selling crack cocaine could be seen as evidence that many white voters and legislators are subconsciously more willing to throw away the lives of small-time black offenders than small-time white offenders. You can call that racism, but only by stretching the word. Especially since the most severe crack cocaine sentences of all had strong support in the Congressional Black Caucus when they were adopted in 1986 and thereafter. Black officials hoped that long prison terms would quiet the "crack wars" that were then consuming inner cities. The Clinton administration also supported these laws.

Orlando Patterson, the noted African-American sociology professor at Harvard, put his finger on the main source of racial injustice in a September 30 New York Times op-ed:

"This virtual gulag of racial incarceration [reflects] a law enforcement system that unfairly focuses on drug offenses and other crimes more likely to be committed by blacks, combined with draconian mandatory sentencing and an absurdly counterproductive retreat from rehabilitation [of] offenders. [This system] simply makes hardened criminals of nonviolent drug offenders and spits out angry men who are unemployable, unreformable, and unmarriageable."

In short, focusing mainly on the residue of racism is a distraction from the far bigger problem of over-punishment. It is also a distraction from understanding why African-American crime rates are so high.

The reason, Patterson says, is "something that has been swept under the rug for too long in black America: the crisis in relations between men and women of all classes and, as a result, the catastrophic state of black family life, especially among the poor…. The resulting absence of fathers — some 70 percent of black babies are born to single mothers — is undoubtedly a major cause of youth delinquency."

This is not to deny that the Jena case involved a clear injustice to identifiable African-Americans. Nor is it necessarily to deny the (debatable, in my view) assertions that Jena school authorities and/or the local district attorney used a racial double standard favoring white students over blacks.

The clear injustice was the initial use of a grossly excessive charge — attempted second-degree murder — that could have doomed five of the Jena Six to long prison terms for ganging up on Justin Barker, a white student who was neither attacked with a deadly weapon nor seriously injured. Indeed, after a much-needed outcry the charges were reduced to aggravated second-degree battery.

The 10,000 to 20,000 African-Americans who traveled to Jena from all over the country on September 20 also protested that the authorities allowed white students who hung nooses on a tree and got into fights to escape serious punishment, while throwing the book at the blacks who attacked Justin Barker.

But even if that’s true, the Jena case is far from being the civil-rights morality play scripted by Sharpton, Jackson, and some in the media. Contrary to their spin, the December 4, 2006, gang attack on Barker was no "schoolyard fight." Nor was it a direct response to the deplorable (but noncriminal) hanging of nooses on a schoolyard tree by other white students more than three months earlier.

In fact, then-16-year-old Mychal Bell, who had been arrested four times for alleged violent offenses, is accused of knocking Barker unconscious in an unprovoked, blindside attack. Then, the charges say, all of the Jena Six (or seven, as it now appears) stomped the prostrate victim until an uninvolved student intervened. Barker was briefly hospitalized with a concussion and multiple bruises.

"In American law," as James Kirchick wrote in the gay online magazine Advocate.com, "you are not entitled to beat a defenseless and innocent person because someone with the same skin color as that person offended you months earlier."

Imagine for a moment that the races of the Jena students had been reversed, and that six whites had ganged up on a lone black student. I suspect that there might have been an even bigger Sharpton-Jackson-led protest. But instead of attacking the prosecutor for being too hard on the black thugs who beat up a solitary victim, the protesters would have been demanding that the white thugs be imprisoned for "hate crimes." And so would some of the same media commentators who have decried the prosecutions of the Jena Six.

They would do better to turn their fire on the real reasons why so many African-Americans end up in prison: cruel sentencing laws, crummy education, and weak families.