By Sam Reisman
(September 8, 2021, 6:35 PM EDT) -- California's newly centralized Department of Cannabis Control on Wednesday published its proposed regulations governing how all legal commercial marijuana activity in the Golden State will be overseen.
The publication of the emergency regulations — approximately 400 pages of revisions and deletions — comes some two months after the state unified its regulation of all aspects of its cannabis market, including cultivation, manufacture and sale, under the DCC's purview.
"Today's action reflects the governor's commitment and our ongoing effort to streamline requirements for California cannabis businesses and simplify participation in the legal, regulated market," said Nicole Elliott, director of the DCC, in a statement. "Many of the proposed changes are the direct result of feedback received during consolidation."
The DCC consolidated functions that were previously performed by three entities: the Department of Consumer Affairs' Bureau of Cannabis Control, the Department of Food and Agriculture's CalCannabis Cultivation Licensing Division, and the Department of Public Health's Manufactured Cannabis Safety Branch.
The agency said the new emergency regulations are meant to codify and harmonize the once distinct regulatory schemes, particularly over license application criteria and who can hold equity interest in a cannabis business.
Griffen Thorne, a cannabis attorney at Harris Bricken LLP, told Law360 that the legacy rules governing ownership of cannabis licensees from the BCC, which oversaw retailers, seem to have in large part been applied to cultivators and manufacturers.
"I think life is going to be a little more difficult for manufacturers and cultivators in general," he said, referring to the need to disclose ownership to regulators. "People are going to have to go back and reevaluate, just to make sure they've done things in a kosher way."
The rules also address how to properly handle trade samples within the cannabis industry. Overseeing trade samples is a responsibility specifically delegated to the DCC by A.B. 141, the legislation that created the agency that was signed into law in July.
"Trade samples had been the bane of everyone's existence in the industry," Thorne said. "In any industry you need to sample goods. We knew that was going to come down."
The release of the regulations kicks off a five-day public notice after which the rules will be filed with the state's Office of Administrative Law. The DCC will accept comments on the regulations until Sept. 21.
-Additional reporting by Hailey Konnath. Editing by Adam LoBelia.
Documentary in the Works
Oglala Sioux Jesse Short Bull is directing the film
by Mia Galuppo
Lakota Nation vs. the United States, a feature-length documentary chronicling the Lakota Indians’ quest to reclaim the Black Hills, is in the works from non-fiction studio XTR with Mark Ruffalo attached as an executive producer. The film is currently in production, with Oglala Sioux Jesse Short Bull directing, with MLK/FBI editor Laura Tomaselli. The doc features the work of Nick Tilsen and Krystal Two Bulls, activists and founders of the #landback movement in South Dakota.
“Lakota Nation vs. the United States isn’t an isolated event in history books — we’re all still paying for it. Our work through this film confronts episodes of our history that have conveniently been chosen to be forgotten, in order to lead to solutions and cease such deplorable atrocities from happening against generations to come,” said Jesse Short Bull.
Benjamin Hedin is producing, with Ruffalo and Sarah Eagle Heart executive producing, along with Kathryn Everett and Bryn Mooser from XTR.
“Our hope is that this stirring meditation on the nature of justice highlights the much-needed atonement for the misdeeds of history and what can be done in the present day to begin repairing the wrongs of the past,” said Everett, head of film at XTR.
Said Eagle Heart, “Our work through this film confronts episodes of our history that have conveniently been chosen to be forgotten, in order to lead to solutions and cease such deplorable atrocities from happening against generations to come.”
Added Ruffalo: “The fight for Black Hills is far from over and our intention is to support the Lakota people by raising awareness for the injustices they face in present-day America. The perception in many Americans’ minds is this is only historical, this ‘happened.’ What they don’t understand is that it is happening now. It is today, it is immediate and mostly hidden from your eye. This is a current issue.”
By Khorri Atkinson
(September 21, 2021, 5:27 PM EDT) -- The U.S. Senate voted along largely partisan lines Tuesday to confirm President Joe Biden's selection of a civil rights and criminal defense attorney for a long-vacant lifetime judgeship at the District of New Mexico.
Margaret Strickland, who formerly worked at the New Mexico Law Offices of the Public Defender, won confirmation by a vote of 52-45 that saw Republican Sens. Susan Collins of Maine, Lindsey Graham of South Carolina and Lisa Murkowski of Alaska joining all Democrats present in support.
Strickland was on Biden's first slate of 11 judicial nominees announced in March, and her confirmation comes as the White House is making an unprecedented push for race, gender and professional diversity on the federal bench across the country. She's also one of a growing number of criminal defense lawyers Biden is naming to the federal judiciary's ranks amid objections from Republicans who complain about their weak civil litigation expertise.
During a May confirmation hearing, Sen. Chuck Grassley of Iowa, the top Republican on the Judiciary Committee, said "there's nothing wrong with being a criminal-defense attorney" as they provide legal service to "protect their clients' constitutional rights." But he rebuked liberal groups like Demand Justice he argued "have made it clear that's not what they want. They seem to think that these criminal-defense judges will defund the police from the bench."
The advocacy organization, founded by two veterans of the Obama administration, has been pushing the Biden White House to look beyond BigLaw for judicial candidates and not to select former prosecutors or corporate attorneys who they say too often align with conservative interests.
Strickland told Grassley at the May hearing that she had spoken two or three times with Demand Justice leader Christopher Kang.
The nominee also insisted that she knows the difference between an advocate's role and that of a judge, who must "approach every case neutrally, deliberately putting aside any personal opinions in order to fairly consider the facts, the law and any arguments from counsel."
Strickland had started McGraw & Strickland LLC in 2011 after her five-year stint as a state public defender. Her firm biography calls her "Your Voice Against Police Brutality" and noted that she won a $1.6 million jury verdict in a civil rights case against Las Cruces, New Mexico, police officers.
At her confirmation hearing, Sen. John Kennedy, R-La., took Strickland to task over her views on qualified immunity, the 50-year-old U.S. Supreme Court doctrine that limits private civil rights suits against government officials including police officers. Kennedy said she had "spent [her] entire adult career arguing against qualified immunity."
Strickland told the lawmaker she would not apply her personal views while on the bench, but Kennedy insisted she would.
"You're going to do everything you can to undermine qualified immunity, aren't you?" he asked.
"No, senator, qualified immunity is the law of the land … and I would apply it," the nominee replied. "I do believe, senator, in qualified immunity. It is the law of this country."
Ahead of Tuesday's vote, Sen. Martin Heinrich, D-N.M., said on the floor that Strickland "is a highly qualified nominee with the right experience, temperament and disposition to be a fair-minded district court judge."
"She has spent her entire professional career working in the community in which she will sit," the senator added. "She knows intimately the impact the legal system has on everyday Americans and she understands that serving as a judge is very different from serving as an advocate."
The Las Cruces-based judgeship Biden selected Strickland for has been vacant since July 2018 when U.S. District Judge Robert Brack, a George W. Bush appointee, assumed senior status. This was also one of the 26 vacancies then-President Donald Trump lost his shot to fill in January after lawmakers voted to certify Biden's presidential victory and then went on recess. Trump had selected Fred J. Federici, a Venable LLP alum and a top federal prosecutor in the state, for the post.
Strickland earned degrees from the University of Texas at El Paso and New York University School of Law. She started her career at the Las Cruces Office of the New Mexico Public Defender and then started her own firm, representing indigent defendants in federal court.
by Connie Hassett-Walker
Before the summer of 2020 #BlackLivesMatter demonstrations nationwide following the death in May of George Floyd from a Minneapolis police officer kneeling on his neck; before the 2015 Baltimore, Maryland, protests after the death of Freddie Gray while in police custody; and before the Ferguson, Missouri, protests after the 2014 shooting death of Michael Brown by a police officer (and the lack of indictment of the officer who shot Brown); there were the Los Angeles riots of 1992 after the acquittal of police officers for beating up Rodney King. Before the 1992 Los Angeles riots came the 1965 Watts Riots (also in Los Angeles) after an African American driver and his stepbrother were pulled over by the police. The Watts Riots occurred in August 1965, days after the Voting Rights Act was signed, months after the Selma-to-Montgomery Civil Rights march occurred, and a year after the Civil Rights Act of 1964.
The Civil Rights Act banned segregation in public spaces, as well as employment discrimination based on race, gender, national origin, or religion. Building on this, the Voting Rights Act targeted legal barriers that states and municipalities had erected (e.g., poll taxes, literacy tests) to prevent African American men from voting in the wake of the passage of the Fifteenth Amendment to the U.S. Constitution in 1870. Perhaps it was the possibility that ending discrimination against African Americans might be possible that caused frustration that was previously tamped down to finally became unbearable. Centuries of suppressed anger—over systemic racism, housing discrimination, Black/white income disparities, poverty, police harassment—finally boiled over in 1965 in Watts, a Black neighborhood in Los Angeles. African Americans took to the street to say, “enough is enough.” Yet, tenuous police/Black community relations arguably haven’t improved that much during the past 50 years. The protests, and mistrust, continue to this day (see, for example, the 2016 documentary Stay Woke: The Black Lives Matter Movement).
How did we get here? There are two narratives of how U.S. policing developed.
Both are true.
The more commonly known history—the one most college students will hear about in an Introduction to Criminal Justice course—is that American policing can trace its roots back to English policing. It’s true that centralized municipal police departments in America began to form in the early nineteenth century (Potter, 2013), beginning in Boston and subsequently established in New York City; Albany, New York; Chicago; Philadelphia; Newark, New Jersey; and Baltimore. As written by Professor Gary Potter (2013) of Eastern Kentucky University, by the late nineteenth century, all major American cities had a police force. This is the history that doesn’t make us feel bad.
While this narrative is correct, it only tells part of the story (Turner et al., 2006). Policing in southern slave-holding states followed a different trajectory—one that has roots in slave patrols of the seventeenth and eighteenth centuries and police enforcement of Jim Crow laws in the late nineteenth to mid-twentieth centuries. As per Professor Michael Robinson (2017) of the University of Georgia, the first deaths in America of Black men at the hands of law enforcement “can be traced back as early as 1619 when the first slave ship, a Dutch Man-of-War vessel landed in Point Comfort, Virginia.”
When a relationship begins like this, can citizen mistrust of police ever fully be overcome? Has policing as an institution evolved far enough away from its origins to warrant Black communities’ trust?
This article isn’t the first public discussion of the history of racism in policing. Indeed, racism in policing is officially acknowledged by the National Law Enforcement Museum. More famously, comedian Dave Chappelle did a bit about it at the Brooklyn club, the Knitting Factory, back in 2015. A piece about the issue, published by the author in 2019 in the scholarly magazine The Conversation, got a lot of traction after the death of George Floyd. As of this writing, over 240,000 people have read that article. The reactions to The Conversation article have varied from positive to negative. Some readers agreed or wrote that it confirmed what they already suspected. Others disagreed (“It’s [police/citizen relations] not much better for white people”) or tried to minimize feelings of guilt (“black Americans played a significant role in the slave trade! So there is lots of blame to go around”). A few annoyed readers took the time to send an email rather than simply posting a comment in the comment section. One email received simply said, “Your a moron.” (The author resisted the urge to reply that if the emailer wished to call the author a moron, then the emailer should use proper grammar.)
Why should there be hostility to simply reminding people of the history of events that already happened? After all, we—Americans—did this. Isn’t owning one’s actions the right thing to do, even if it makes us feel bad for a while? The ugly past should be revisited because there is still a problem with police/community relations with respect to African Americans.
How You Start: Slave Codes and Slave Patrols
Originating in Virginia and Maryland, the American slave codes defined slaves from Africa as property rather than as people (Robinson 2017); that is, without rights. American slave codes were rooted in the slave codes of Barbados. According to Dr. Robinson (2017), the British established the Barbadian Slave Codes (laws) “to justify the practice of slavery and legalize the planters’ inhumane treatment of their enslaved Africans.” American policing in the South would begin as an institution—slave patrols—responsible for enforcing those laws (Turner et al., 2006), as slave uprisings were a threat to the social order and a chronic fear of plantation owners.
The first slave patrols were founded in the southern United States, the Carolina colony specifically (Reichel, 1992), in the early 1700s. By the end of the century, every slave state had slave patrols. According to Dr. Potter (2013), slave patrols accomplished several goals: apprehending escaped slaves and returning them to their owners; unleashing terror to deter potential slave revolts; and disciplining slaves outside of the law for breaking plantation rules. Described by Turner et al. (2006), slave patrols were a “government-sponsored force [of about 10 people] that was well organized and paid to patrol specific areas to prevent crimes and insurrection by slaves against the white community” in the antebellum South. Without warrant or permission, slave patrols could enter the home of anyone—Black or white—suspected of sheltering escaped slaves. (In modern times, this would be a clear violation of the Fourth Amendment and constitute an illegal search.) After the Civil War ended, the slave patrols developed into southern police departments. Part of the early police’s post–Civil War duties was to monitor the behavior of newly freed slaves, many of whom, if not given their own land, ended up working on plantations owned by whites and to enforce segregation policies as per the era’s new Black Codes and Jim Crow laws.
The first Black Codes were passed in 1865, shortly after the ratification of the Thirteenth Amendment outlawing slavery. The codes were laws that specified how, when, and where freed slaves could work and how much they would be paid. Essentially, the Black Codes maintained the de facto structure of slavery without formally calling it “slavery.” Other Black Codes restricted Blacks’ right to vote, dictated how and where they could travel, and where they could live. Because many ex-Confederate soldiers had transitioned to working in policing or elsewhere in the justice system (e.g., as judges), the justice system, including law enforcement, perpetuated the oppression of African Americans.
In the 1880s, new forms of Black Codes known as Jim Crow laws were enacted across southern states. In effect until 1965, these new laws prohibited Blacks and whites from sharing public spaces, such as schools, libraries, bathrooms, and restaurants. The hardships of life for African Americans in the Jim Crow South (Mississippi, specifically) are the focus of a recent book by Jim Sturkey, Hattiesburg: An American City in Black and White. Perhaps the most infamous image from this era is the separate but “equal” water fountain for white versus colored individuals, taken in 1950 by Elliot Erwitt in North Carolina (see here). Blacks who broke the law or violated norms during the Jim Crow period were often met with brutality at the hands of the police (Robinson, 2017).
Fast forward to the 1960s and the formal end of the Jim Crow era. The Voting Rights Act and the Civil Rights Act came during a decade of much social and political upheaval. Opposition to the Vietnam War and other protest movements—for civil rights, women’s rights, victims’ rights, prisoners’ rights—signaled that America had entered a new era of challenges to the status quo. In July 1964, civil rights activist Malcolm X would denounce what he called New York police’s “outright scare tactics” in responding to racial tensions in the city. During this time of upheaval, the police acted as enforcers of the status quo. It was no longer about quashing slave uprisings. Indeed, citizen protests and police response to those protests were not just happening in the former slave states but throughout the country. According to Dr. Victor Kappeler (2014) of Eastern Kentucky University, the police were now tasked with responding to anyone who pushed back against the existing social, political, and economic structure of America—which seemed to disadvantage the poor and people of color. During the summers of the late 1960s, race riots broke out in cities across the country, particularly in 1967 and after the 1968 assassination of civil rights leader Dr. Martin Luther King Jr. The police responded at times harshly to the riots using dogs, fire hoses, and tear gas.
As an aside, it is worth mentioning that policing isn’t alone in the criminal justice system in having an issue with institutional racism and discrimination. Other parts of the system—including courts and corrections—are also affected. Two words: wrongful conviction. Ava DuVernay’s excellent Netflix miniseries When They See Us portrays the heartbreaking ordeal of the men—Korey Wise, Kevin Richardson, Raymond Santana, Antron McCray, and Yusef Salaam—known as the Central Park Five. Decades earlier came the wrongful conviction of teenagers known as the Scottsboro Boys. They were also falsely accused of raping two white women. These are not isolated incidents.
How We Finish?
For the record, the point of this article is not to assert that individual police officers are racist. The author has friends, family, and students in law enforcement who are good, ethical people and who view their primary job as to protect and serve the public. When speaking with police officer friends and family members in the wake of George Floyd’s death, the word that came up most often was “disgusting” (how Floyd died). The point is that the overall institution had a terrible start in some (not all) aspects, for which there has never been a reckoning. Perhaps if policing—and the justice system more broadly—had done a better job of reconciling with its racist past, there wouldn’t be calls currently to defund the police.
There have been some improvements. There is greater awareness of the need to have a more diverse police force. There is also more understanding among police of the importance of handling citizens with care; and that brutality—particularly lethal force—against citizens can lead to citizen mistrust of police and community outrage. There are calls for police to wear body cameras to monitor police behavior so as to reduce police abuse of their power by increasing transparency of police behavior. (Studies [e.g., Hedberg et al., 2017] on the effectiveness of body-worn cameras show mixed results. See, for example.) Groups like Blacks in Law Enforcement of America and 100 Blacks in Law Enforcement Who Care (“100 Blacks”) now exist and have a voice as well as a social media presence. Police departments nationwide are more diverse, including the hiring of more Blacks, Hispanics, and women, although there is room for improvement. In the past 10 years, the rise of technology, like smartphones, and social media platforms, like YouTube and Facebook, have empowered citizens to capture real-time video of police encounters. The author is cautiously optimistic that the institution of policing is evolving away from the racially oppressive part of its roots.
Yet, issues remain, such as racial profiling (Meehan & Ponder, 2002). In New York City, police stop-and-frisk practices have been the subject of a recent federal lawsuit that found them to be unconstitutional in that they unfairly target Blacks and Hispanics. A new study by Stanford University researchers of 100 million traffic stops nationwide found evidence of racial profiling by officers in stopping drivers (Pierson et al., 2020). The researchers found that Black and Hispanic drivers were stopped and searched more frequently than were white drivers, but this drops after sunset when the driver’s race is harder to spot from a police car.
How far we have come, how far we have yet to go.
(September 9, 2021, 10:40 PM EDT) -- Cannabis policy experts warned on Thursday that federal legalization could trigger a regulatory crisis for an industry that's been governed by state law for close to a decade, potentially rolling back social equity programs and eroding years of regulations.
The ramifications of creating an interstate cannabis market overnight would be felt most acutely by smaller businesses unable to compete with multistate giants, and by state regulators suddenly forced to adapt their policies in ways that would likely limit their power.
The comments were aired at a webinar moderated by Andrew Kline, senior counsel at Perkins Coie LLP, and echo many in the industry who have urged federal lawmakers to slowly roll out legalization so as not to radically alter state cannabis markets.
"It's always the smallest businesses and most marginalized groups that suffer the most when you introduce this kind of chaos," said panelist Shaleen Title, a former regulator with the Massachusetts Cannabis Control Commission and CEO of the social equity-focused think tank Parabola Center.
According to panelist Robert Mikos, a professor at the Vanderbilt Law School who has studied the intersection of federalism and cannabis policy, many states enacted their regimes under the assumption that the federal prohibition on cannabis effectively turned off the dormant commerce clause: a constitutional doctrine that limits states' power over interstate commerce.
Federal legalization, as envisioned by the Cannabis Administration and Opportunity Act, or CAO Act — released in draft form in July by Senate Democrats — would "remove any doubts that this normal background principle of constitutional law applies to the cannabis market," Mikos said. "And because of that principle, you're going to see challenges to all sorts of state regulations."
For example, many states put in place residency criteria requiring that cannabis licensees have in-state residency on the grounds that it makes the industry easier to oversee or because voters expected legalization to benefit their fellow residents.
These requirements have been frequently challenged in court on constitutional grounds, with uneven results, but panelists warned that federal legalization without explicit congressional legislation suspending the dormant commerce clause could be their undoing.
Some states implemented their social equity policies by privileging applicants that hail from certain zip codes disproportionately harmed by prohibition, and these rules too could be struck down as de facto residency requirements, the panelists said.
While some of these policies may have been designed with protectionist intentions, many were developed as practical matters to help regulators track marijuana to guard against diversion to minors, non-patients and out-of-state sellers, Mikos said.
"They developed these track-and-trace systems, and those are only feasible as long as you restrict interstate commerce in cannabis," he said. "They created these closed-loop systems within a state. ... Those sorts of things don't work very well when you bring in product from outside the loop."
The panelists also warned of a potential "race to the bottom," with more onerous regulations being struck down in favor of more relaxed ones as policymakers angle to make their state more welcoming to cannabis businesses that can freely move to another state.
The panelists were generally supportive of the CAO Act — co-authored by Senate Majority Leader Chuck Schumer, D-N.Y., and Sens. Cory Booker, D-N.J. and Ron Wyden, D-Ore. — and they applauded its criminal justice reform and cannabis descheduling components.
Kline, former director of public policy for the National Cannabis Industry Association, said that despite the draft bill's silence on the dormant Commerce Clause and the industry's concerns about an interstate market, stakeholders agreed that descheduling cannabis should have happened "yesterday."
But the bill's relative lack of substance in preserving state autonomy is still a pressing concern. According to panelist Jeremy Unruh, a public and regulatory affairs executive at multistate cannabis company PharmaCann LLC, the provision of the CAO Act that outlines states' rights to regulate cannabis may be more toothless than it seems, since it borrows language from preprohibition laws governing how states can regulate alcohol.
Decades of Supreme Court decisions have interpreted those laws under the 21st Amendment, which ended alcohol prohibition, with the upshot that states have less power. "They've eroded that language that's in the CAO Act so it doesn't give the states much more discretion to regulate cannabis coming in from other states than any other commodity," Unruh said.
"There really aren't any special protections states can use to ensure the stability of their state programs," he added.
By Sam Reisman
Why Did It Take 47 Years to Prove Anthony Mazza was Innocent?
In April 1973, Anthony Mazza was sentenced to life in prison without parole for a murder in Boston. Last June, at the age of 73, he was released after his conviction was vacated because his trial lawyer was denied key evidence that points to his innocence.
The Massachusetts Supreme Judicial Court vacated the case in April, 2020, and charges were finally dismissed in March, 2021—making Mazza the 2,800th American defendant listed in the National Registry of Exonerations.
He spent more than 47 years in prison for a crime he did not commit, longer than any other American exoneree, but his case received so little attention that it took months to track down the details.
It’s hard to imagine spending decades in prison for a crime you did not commit—but Mazza is not alone.
The Registry includes nine other innocent defendants who were released after more than 40 years in prison, 60 who spent at least 30 years in prison, 184 who were imprisoned for more than 25 years each. All told, the 2,800 exonerated defendants we know about spent more than 25,000 years in prison.
For most of the time that Anthony Mazza was in prison, he had no legal assistance. His attorney on appeal did not even ask that his conviction be reversed, only that his sentence be reduced because of his supposed “mental retardation.” That appeal was rejected quickly, in 1974.
For the next 32 years, Mazza pursued justice on his own, and did so with determination and effectiveness that’s hard to square with intellectual disability.
The only witness who directly connected Mazza to the murder was Robert Anderson, an acquaintance in whose apartment the body was found, who drove the victim’s stolen car for days after the killing, who gave items of the victim’s property to others—but who testified that Mazza alone was the killer.
Framing an Innocent Friend
Anderson’s statements about the killing were contradictory and his testimony was inconsistent. Mazza, who had an alibi, always maintained that Anderson himself was the killer. That’s a familiar story. There are at least a dozen other exonerations in the Registry in which a murderer avoided punishment by framing an innocent acquaintance or friend.
Between 1977 and 1995, Anthony Mazza, with no legal help, filed four petitions to reopen his case. They were based in part on affidavits from several men who met Anderson in prison, where he served time for other crimes, and stated under oath that Anderson told them that he had framed Mazza for murder. All four petitions were denied—or worse, ignored.
In 2006, Mazza filed a fifth motion, including a new item: a statement that Anderson’s brother gave to the police in 1972, describing conduct and statements by Anderson that strongly support the claim that Anderson was the killer. Mazza’s lawyer had not seen that statement before his trial. It took Mazza years to get a copy from the Boston police department, once he learned he was entitled to it.
After that, things began to change for Mazza’s case, but at a snail’s pace.
In 2006, a judge appointed a lawyer to represent him. In 2009, that lawyer filed a sixth motion to reconsider the conviction. That motion travelled through the Massachusetts courts, from bottom to top, twice. Finally—after 11 more years, with no change in the evidence—the Supreme Judicial Court of Massachusetts reversed Mazza’s conviction because this undisclosed 1972 witness statement undermined the integrity of the jury’s judgment.
This is a common pattern. Withholding evidence of innocence is the most frequent type of government misconduct in trials of innocent defendants. It happened in 61 percent of murder exonerations.
Living Past Exoneration
Anthony Mazza’s exoneration was hardly preordained.
For one thing, prison is very bad for one’s health. By one estimate, a year in prison reduces a person’s life expectancy by about two years. Mazza is fortunate to have lived long enough to be freed; let’s hope he has a chance to enjoy his freedom.
Olin Coones spent 12 years in prison in Kansas for a murder he did not commit. He was exonerated in 2020, but died less than four months later from health conditions that were not diagnosed or treated in prison.
In addition, all copies of the hidden witness statement that freed Anthony Mazza might have been lost or destroyed before he obtained one. Or the courts might have continued to ignore or deny his claims despite this new evidence. Or Mazza, working without expert help, might never have learned how to obtain public records.
Or he might simply have given up, as many innocent prisoners do.
The most important lesson from the (as of June) 2,808 exonerations in the National Registry is that the great majority of innocent defendants who are convicted of crimes are never exonerated.
Why, for example, are defendants who are sentenced to death exonerated about six times more often as defendants—like Mazza—who are convicted of murder but sentenced to life imprisonment?
It’s not because those sentenced to death are six times more likely to be innocent. It’s because defense lawyers, prosecutors, judges, governors and journalists work hard to identify innocent defendants who might be executed.
In particular, unlike Mazza, almost all defendants sentenced to death have lawyers as long as they remain on death row. Few innocent defendants who are imprisoned for life have access to lawyers, and most remain and die in prison.
If we can’t stop convicting the innocent we should at least acknowledge that we do make these terrible mistakes, and take substantial claims of innocence seriously from the start.
We must pay attention when significant new evidence of innocence is presented, not ignore it because the case is closed. And the cases of prisoners who might be innocent should go to the front of the line for decision, not the back, so those who are innocent are freed before they reach old age or die.
Don’t confuse what happened to Anthony Mazza with justice. It’s not.
Samuel Gross, Professor of Law Emeritus at the University of Michigan, is co-founder and senior editor of the National Registry of Exonerations. Ken Otterbourg, a former journalist, is a researcher at the National Registry of Exonerations.
This summer, 123,000 people signed the petition, so there may be fierce support among Nebraskans favoring legalized medical marijuana use. Still, no one will get to vote on the issue this November.
On Thursday, the Nebraska Supreme Court issued a 5-2 split decision that removed this fall’s ballot issue.
Lancaster County Sheriff Terry Wagner, a long-time marijuana opponent, challenged the ballot question before the Nebraska Supreme Court. He’s pleased with the court’s ruling.
“Medicinal marijuana always seems to be the first step in reaching for legalized recreational marijuana, and so this effort was no different than Colorado or any other state that’s done that.”
The merits of medical marijuana were not the issue before the appellate court. Wagner’s attorneys argued last week how proponents presented the question to voters was so flawed as to require it be removed from consideration by voters.
According to the language on the ballot, approved by Secretary of State Robert Evnen, a yes vote would add a Constitutional amendment giving Nebraskans the right to use, purchase and produce cannabis for serious medical conditions if recommended by a doctor.
The opinion released Thursday determined the result would mean several state law changes, including possession, use in public, being under the influence at work, and insurance coverage. According to the court, each represented separate issues that could not be rolled in a single ballot question.
“If voters are to intelligently adopt a State policy with regard to medicinal cannabis use,” the justices wrote, “they must first be allowed to decide that issue alone, unencumbered by other subjects.”
Two of the justices, Judges Jonathan Papik and Lindsey Miller-Lerman, dissented in the opinion, something rare for the Nebraska Supreme Court. The dissenters argued the topics were closely enough related to warrant being grouped in a single ballot question.
The unfavorable ruling represents the latest failure for medical cannabis supporters in the courts and the Nebraska State Legislature.
One of the petition drive leaders, State Senator Anna Wishart, told NET News, “I’m very sad.”
Her voice noticeably emotional, she said she had “put a lot of her heart into this effort” and spoke of others who worked on the petition drive “who are really struggling with serious medical conditions.
“Just the thought of them having to wait longer is very sad.”
Marijuana use is legal in 33 states.
Five other states, Arizona, Mississippi, Montana, New Jersey, and South Dakota, will have the opportunity to vote on legalization this election year.
As COVID caused massive shutdowns of traditional in-person institutions, courts were faced with a dilemma. Facing severe backlogs if the courthouse doors were closed, courts quickly shifted to Zoom-based proceedings.
Today, you can watch hundreds of livestream court events—many on YouTube—ranging from felony arraignments to traffic ticket hearings to family court proceedings. For the defendant or witness, this is a welcome change. Going to court no longer requires a person to find childcare, take time off work, or risk exposure to COVID.
However, they must now contend with their name and image broadcast across the internet.
Streaming court proceedings uses the same logic as the decision to release court documents on the Internet in the late 1990s and early 2000s. Rooted in virtues of transparency and accountability, the argument is that anything you might witness or access in person by visiting court should be similarly available on the Internet.
These are laudable goals. However, the turn to digital access had the unintended consequence of creating digital punishment: a phenomenon where the collection and release of digital criminal justice information creates permanent online stigmatization for millions of people arrested or processed through U.S. courts each year.
Due to a blend of permissive public records laws that allows the release of pre-conviction and in-process case information—as well as a private market built on re-sharing and selling this information across extortion sites and background check services—millions of people have a tarnished digital reputation simply because they were processed through the court system.
As I document in my recent book, the harms of digital punishment are far reaching.
My research has shown that people who must continually confront their addiction or mistakes posted online often begin to “opt out” of institutional and social contexts that might trigger a Google search. Rather than engage in their communities, schools, or churches, people avoid situations where new people might want to learn more about them—only to discover their name on a website that has reported a court docket or a mugshot.
There are material harms as people avoid employment, educational, and housing systems that rely on increasingly automated background checks that may report incorrect, misleading or outdated information that is nearly impossible for the applicant to remedy.
There are also social harms. Dampening social and institutional participation can also decrease democratic participation, especially if digital punishment leads people toward legal estrangement, lessens procedural justice by assigning public guilt before due process, and increases mistrust in government through what people experience as state-sanctioned privacy violations.
If a victim, witness, or defendant is terrified to testify or afraid to tell the truth because they know their face and voice will be broadcast on YouTube, justice will not be served.
Another overlooked problem with digital access to courts is that we don’t learn nearly as much about judicial decision-making as we do about the individual people whose lives are broadcast across the internet during their hearings.
Recently, I watched a child custody proceeding unfold over five hours in a Texas courtroom. Through his own live streamed testimony, I learned about the father’s alcoholism and suicide attempt and watched as his lawyer screen-shared dozens of emotional text messages between the two parents.
The judge was mostly silent as the proceedings shifted to the mother, tired and in hospital scrubs, whose lawyer showed dozens of photos of the interior of her home, including of her children’s bedrooms.
In New Jersey’s Essex County, I watched an elderly man in prison garb and a face mask silently weep on video for ten minutes at his arraignment. His public defender made a case for his release based on his health and risk of death through COVID exposure. The judge rapidly read through his rights and conditions of a pretrial release. The man asked if she could call his employer to explain why he missed a week of work. The livestream ended.
Live court on YouTube has the potential to expand digital punishment in unexpected ways. We don’t know yet if and how court live streams have been recorded and replicated for extralegal purposes.
We don’t know who is watching.
Transparency is central to having an accountable judiciary. But the pace and disorganization of local courts means viewers get very little sense of how the criminal justice system really operates. Aggregate, complete data about the criminal legal system is still incredibly difficult for journalists and researchers to access. Photos of children’s bedrooms in suburban Austin do not fulfill the intent of public access for watchdogging government officials.
The solution? Courts have a simple opportunity here to instill a bit of practical obscurity, which has long been the shield for protecting individual privacy while encouraging open government. Courts can easily have users register for a password-protected Zoom proceeding.
In the digital context, this means a small, verification hurdle to encourage interested journalists, researchers and members of the public to access governmental data for accountability reasons. In some ways, password protected live streams better mirror the traditional forms of access that underlie transparency laws, where the requester has an active interest in a document, rather than a passive opportunity to make a copy.
And even as our lives have become more isolated and based in technology, we shouldn’t forget that policy decisions are a human-powered process.
The expansion of digital punishment into unexpected, pandemic-responsive domains is not the inevitable outcome of digital life. Technological advances like Zoom and YouTube do not determine their own fate; people and organizations use technologies and share data for specific ends.
We can choose a better way to ensure the judiciary is serving the public while also protecting that same public.
Sarah Esther Lageson is an assistant professor at Rutgers University-Newark School of Criminal Justice, and a grant recipient of the National Institute of Justice Early Career Award. She welcomes comments from readers.
Shortly before the Nineteenth Amendment became a reality, in October 1917, Fannie Lou Hamer (nee Townsend) was born into a Mississippi sharecropper family. The youngest of 20, she was picking cotton at six and left school at 12 p.m. each day to work. In the early 1940s, she met and married Perry (Pap) Hamer, and they continued plantation work. Her ability to read and write allowed her to serve as recordkeeper.
In 1961, Hamer, like many of her contemporaries, was the victim of forced sterilization without her consent when a white doctor was performing other surgery. This attempt to control the black population was one factor precipitating her activism. She attended a Student Non-Violent Coordinating Committee (SNCC) meeting. “They talked about how it was our rights as human beings to register to vote. I never knew we could vote before. Nobody ever told us.” She became an organizer and in the summer of 1962, led 17 neighbors to the Indianola, Mississippi, courthouse to register to vote. They were unsuccessful. Upon return, her employer, objecting to her trying to register to vote, fired her.
In 1963, traveling home from a workshop, she and other organizers sat at the whites-only lunch counter and were arrested. In jail, she was so severely beaten, effects to her eyes, legs, and kidneys lasted the rest of her life.
Hamer cofounded the Mississippi Freedom Democratic Party (MFDP) in 1964 in response to the Democratic Party’s attempts to block the participation of black folks. She spoke at the Democratic National Convention and addressed the Credentials Committee, demanding mandatory integrated state delegations. Hamer and the MFDP were noticed, nationally, although the request was denied. Her work was an integral part of the Freedom Summer that brought hundreds of students south to fight for civil rights. Despite objections, Hamer supported the white students, encouraging an integrated movement. She said, “If we’re trying to break down this barrier of segregation, we can’t segregate ourselves.”
Hamer identified economic security as the key to achieving civil rights. She did relief work, started the Freedom Farm Cooperative (buying land that black people could own and farm collectively), and secured 200 units of low-income housing.
Even after the Voting Rights Act of 1965, Hamer’s work was not done. In 1968, she was a member of Mississippi’s first integrated delegation, and three years later helped found the National Women’s Political Caucus. Her injuries from the jail beating and breast cancer slowed her down by the mid-1970s. She died in 1977.
The fight for the unfettered right to ballot access continues today. If you’re “sick and tired of being sick and tired,” you are in good company. When Fannie Lou Hamer said that, she didn’t let it stop her. And it can’t stop us.
This story originally appeared in High Country News in 2016
Paul Lumley, like many Yakama Nation citizens, grew up fishing on the Columbia River, through which salmon flowed like blood. Though Lumley’s family lived north of the Columbia, in Washington’s Yakima Valley, his family migrated to the river each fall to set gillnets for valuable chinook. Lumley slept in the truck bed for months at a time, steeped in eau de salmon, at Underwood, a small, decrepit fishing camp set aside for American Indian use by the federal government. “It was really rough living,” Lumley recalls.
Today, 31 such fishing camps line the river, and hundreds of tribal members flock to them during fishing season. Up to 160 families also inhabit the camps year-round. Lumley now serves as director of the Columbia River Inter-Tribal Fish Commission, a tribal management agency that conducts fisheries research, enforces regulations, and operates hatcheries. Despite its fishy focus, Lumley’s agency is also worried about the Columbia’s camps — among the quietest housing crises in modern-day Indian Country.
The housing dilemma, like many Northwest tribal fisheries conflicts, has its origins in 1855, when treaties pushed tribes onto reservations far from the Columbia. Though the treaties guaranteed American Indians access to traditional fishing sites, the reservations were anathema to those whose sustenance and culture flowed from the Columbia’s waters. White soldiers fought them and settlers murdered them, yet some tribal members remained rooted to the riverbanks, growing gradually distant from their reservation kin. According to the historian Andrew Fisher, “River Indians” today “constitute a shadow tribe, part of and yet separate from the tribal bodies whose fortunes they share.”
In 1937, the U.S. Army Corps of Engineers completed Bonneville Dam, flooding numerous fishing sites and villages. But the treaties gave the tribes leverage, compelling the Corps to relocate some families while promising to purchase land and build new homes for others. Similar vows accompanied the subsequent construction of the Dalles and John Day dams. Yet it took the agency nearly 20 years after the completion of Bonneville to set aside five meager parcels for Native American use. The Corps did briefly put some tribal members in World War II-era barracks, but the buildings turned out to be ridden with asbestos.
The situation improved somewhat in the 1990s, when the Corps began construction on 26 new seasonal fishing sites. But the sites still lacked housing. Most resemble bare-bones campsites, endowed with little more than a bathroom, a fish-cleaning station and a boat ramp; many lack running water and electricity. Tribal fishermen drag in generators or bootleg power from the grid.
Although the housing crunch has simmered for decades, in the last several years it has erupted into a full-blown crisis. Record-setting salmon runs have lured more fishermen from the reservation to the river, crowding the sites in summer and fall and straining their deplorable infrastructure. In turn, the tribes have recruited congressional allies to make their case to the Corps, which has acknowledged its responsibility to build new housing. But bureaucracies move slowly, and dispensing reparations for historical injustices has never been America’s strong suit. Says Yakama fisherman Randy Settler: “It’s not a popular issue to build replacement homes for something that happened 70 years ago.”
Poor living conditions are common in Indian Country — more than 5 percent of homes on Native American land lack plumbing, 10 times the national average. Still, Lone Pine, Oregon, a tribal fishing camp 85 miles east of Portland, is a particularly run-down aggregation of trailers and shacks sided with corrugated tin and tree bark. Hubcaps and piles of clothes litter the packed-dirt track; derelict vans and motorboats perch on cinderblocks. A single bathroom serves the 40 permanent residents, whose numbers swell during fishing season. Drug abuse, including meth and heroin, is rampant.
Lone Pine sits on basalt bluffs across the river from the Dalles Dam, which generates power for a nearby $1.2 billion Google data center, among other infrastructure. “How do you think people at Lone Pine feel looking at this huge dam every day, making all those other people rich?” says Lumley, a rangy, cordial man whose voice grows softer the angrier he gets. “When I ask this community if they want a free house, they look at me like I’m crazy. They want water that works, they want someone to come pick up the -garbage.”
The substandard facilities aren’t merely eyesores, they’re also hazardous to health and safety — as demonstrated by Lumley’s uncle, a wizened, good-humored 86-year-old named Johnny Jackson. Jackson, a chief of the Cascade Tribe, one of the groups that comprise the Yakama Nation, has lived at the Underwood site since the 1960s, when he resisted the Corps’ attempts to oust him and turn the landing over to white sport fishermen. “My sisters used to come and help me have a salmon-bake right here,” he recalls, standing in the shade of a fish-cleaning station. In September 2014, Jackson’s hand-built house caught fire when a faulty fuel line caused his propane tanks to hurtle through the air like bottle rockets. When firefighters arrived, they found that the nearby yellow fire hydrant wasn’t connected to any water source. Jackson’s home was reduced to charcoal. Now he lives in a trailer.
Lone Pine and Underwood are not unique in their dilapidation — the bathroom in a 3-acre site called Cooks Landing doesn’t even have a door, and most of the other 31 sites suffer from similar conditions. But even supplying these spartan services is draining the Corps’ coffers: According to Laurie Jordan, a policy analyst for the Inter-Tribal Fish Commission, it costs more than $40,000 per year just to pump the septic tank at Cooks Landing.
The abysmal quarters contrast painfully with nearby North Bonneville. When that town had to be moved in the 1970s to make way for a new dam powerhouse, its mostly white residents secured $35 million for relocation. Today, the community is a Pleasantville-esque complex of churches, tennis courts and ball fields. “I’m happy for them,” says Lumley as we drive through the hamlet. “But we have people who are owed basic amenities.”
After more than 70 years of neglect, new housing may finally be on the horizon. In 2013, a Corps-commissioned report acknowledged that many displaced families had never received relocation assistance, and that the facilities were inadequate. The 2016 iteration of the Water Resources Development Act, biennial legislation that authorizes Corps water projects, includes language about granting relocation assistance to displaced families. In July, congressional delegations from Oregon and Washington also introduced legislation in the House and Senate that would direct the Bureau of Indian Affairs, which owns the sites, to improve sanitation and electrical infrastructure. “These are items that shouldn’t wait for longer-term legislative action,” says Rep. Earl Blumenauer, D-Ore., one of the bill’s authors. “It’s extraordinarily frustrating that we’ve allowed these conditions to -persist.”
Although passing the legislation will be a tall order in an election year, the housing momentum is gathering. If and when funding arrives, the tribes will face a difficult decision: Who will build and manage the infrastructure? Though the Bureau of Indian Affairs was once responsible for operations, maintenance and law enforcement at the sites, everyone agrees the agency bungled the job — a posted emergency phone number, for instance, sometimes routed calls to an office in Wyoming. These days, those responsibilities are handled by the Inter-Tribal Fish Commission, but it’s an awkward fit. “Fish is our middle name,” says Lumley. “Housing isn’t.” Lumley hopes the tribes will create a housing authority to steward the sites. “There’s the potential to address the long-term economic development that these people need,” he says. “But it needs to come directly from the communities themselves.”
More than 150 years after the U.S. Army attempted to dislodge the Columbia River Indians, the river tribes remain in the shadows. Many year-round river dwellers, says Jordan, don’t avail themselves of services like welfare, food benefits and energy assistance, which are widely used by reservation residents. According to Wilbur Slockish, a bearish 71-year-old Klickitat chief, off-reservation Indians remain out of sight and out of mind when the salmon aren’t running. “The tribe’s mentality is the reservation, and it’s always been that way,” he says. “We’re on our own.”
Few river dwellers know that better than David Sohappy Jr., a Yakama fish technician whom I meet on a warm sickle-moon evening at Drano Lake — a Columbia River pool formed when Bonneville Dam inundated a historic fishing village in the 1930s. In 1982, when hostilities between the River Indians and the government were near their apex, -Sohappy and his father were arrested at Cooks Landing for illegally selling fish to undercover federal agents. Though they pled entrapment, both men received five-year sentences. “I remember him lying awake on his bunk in prison, banging his fist against the wall,” Sohappy says.
That Sohappy, once jailed as a poacher, now works as a tribal fisheries manager is a sign of how far the Northwest has come. Salmon runs, though still just a vestige of their pre-dam glory, are stronger than they’ve been in decades, and fishing has reassumed its prominence in Native life. Fifty years ago, when many runs stood on extinction’s doorstep and officers tear-gassed Yakama fishermen for “trespassing,” it would have been almost impossible to imagine the Columbia River teeming with Native-owned boats.
Some injustices, however, can never be rectified. Sohappy’s own great-grandmother grew up alongside the Columbia, but was forced to move away when her village was drowned by Drano Lake.
"She wanted to live near the river,” Sohappy says. “She died waiting for the house the government promised her they’d build.”
Ben Goldfarb is a correspondent for High Country News, covering wildlife science, fisheries management and Northwestern resource politics.