“Gender-neutral” sentencing policies aimed at treating individuals convicted of murder equally have in fact put women at a disproportionate risk of spending the rest of their lives in prison, according to a study released by The Sentencing Project.
The policies, which give courts little leeway to take account of mitigating factors such as trauma resulting from sexual abuse or coerced participation in crimes committed by spouses, unwittingly create a gender trap that has driven up the number of women serving life terms in prison by an “alarming” 43 percent since 2008, the study argued.
Under stricter sentencing guidelines established by “tough on crime” legislatures, judges must consider everyone involved in an incident resulting in homicide equally culpable, regardless of whether they actually pulled the trigger.
“Allegedly gender-neutral sentencing policies, such as mandatory minimums that do not account for differential involvement in crime between major participants and minor participants, place women at an extreme legal disadvantage,” wrote Ashley Nellis, Ph.D., senior research analyst at The Sentencing Project and lead author of the study.
“For instance, sentencing laws require the same punishment regardless of a defendant’s role in the crime, but women are frequently responsible for a comparatively smaller role in certain violent crime scenarios such as being a getaway driver.”
In addition, the study noted, “Because [women] are sometimes coerced into involvement in such crimes by romantic partners or husbands, they are also often disproportionately punished where laws require identical punishments for all defendants regardless of their role in the crime.”
The failure to take such mitigating factors into account is the result of a criminal legal system “designed principally by men and for men,” Nellis wrote.
There are 6,600 women prisoners currently serving “extreme sentences” such as terms of 50 years or more. Just under a third—about 2,000―were sentenced to Life Without Parole (LWOP), essentially meaning they will die in prison.
Some 52 women are currently on death rows across the U.S.
While all the women facing life sentences have been convicted of murder, about half of their victims were family members or intimate partners. For men, the percentage is 20 percent.
Moreover, older women are disproportionately serving extreme sentences, the study said.
Based on a survey sample of 1,000 female prisoners serving LWOP, researchers found that “a shocking 44 percent” are currently at least 55 years old, compared to 27 percent of the general population of incarcerees.
Gender bias is further exacerbated by systemic racial bias, researchers found. One of every 39 Black women in prison is serving LWOP, compared with one of every 59 imprisoned white women.
Taken together, the figures show that incarcerated females charged with murder are at a serious disadvantage compared to men.
“Women offenders are being swept up in a system that appears to be eager to treat women equally, which actually means as if they were men,” said the study, quoting scholars Stephanie Covington and Barbara Bloom. [i]
“Since this orientation does not change the role of gender in prison life or corrections, female prisoners receive the worst of both worlds.”
The report is a joint publication of The Sentencing Project, the National Black Women’s Justice Institute, and the Cornell University Center on the Death Penalty Worldwide.
In 2020, the three groups founded the Alice Project, a collaboration aimed at highlighting the experiences of incarcerated women who received the harshest sentences available in the U.S. corrections system.
The odds against women offenders getting equitable treatment begin long before they are ensnared in the justice system, said the study.
“Many women facing extreme sentences experienced trauma and abuse prior to their imprisonment,” Nellis wrote, “A majority of the women have endured sexual and/or domestic violence, and the legal system has consistently failed to take their experiences into account.”
Some state legislation, such as New York’s 2019 Domestic Survivors Justice Act, includes prior trauma as a mitigating factor in assessing culpability and determining punishment.
Considering the “nuanced life experiences” of women serving life terms should be part of sentencing reforms across the country, said the study.
“A wealth of evidence suggests that women encounter gender-based stigma and bias that negatively affects their court outcomes,” the study concluded.
“Their experience of violence—both as victims and as perpetrators—are distinct from the experiences of men, but women are subjected to a criminal legal system that does not acknowledge these important differences.”
Assistance for the study was provided by Skye Liston and Savannah En, Research Fellows at The Sentencing Project.
The complete study and tables can be downloaded here.
[i] Covington, S. and Bloom, B. (2003). Gendered justice: Women in the criminal justice system. In Gendered Justice: Addressing Female Offenders. 1. Richie, B. (2012). Arrested justice: Black women, violence, and America’s prison nation.New York University Press.
BY JENNA KUNZE
OCTOBER 02, 2021
CARLISLE, Pa.—Mary Kininnook (Tlingit) was one of nearly 200 children who died and were buried while students at the Carlisle Indian Industrial School, the nation’s first off-reservation Indian Boarding School. But you wouldn’t know it by scouring the graveyard at the former school grounds.
Despite historic records noting Mary’s death at age 14—caused by pulmonary tuberculosis —and details about her Dec. 28, 1908 funeral service, none of the 173 headstones at Carlisle bear Mary’s name.
That’s because of Carlisle school administrators’ failure to mark and maintain all of the graves promptly and consistently, Carlisle Indian School Digital Research Center archivist Jim Gerencser said. Headstone markings were either washed away over time, or never there to begin with, he said. So when the Army, which took over Carlisle in 1918, moved the cemetery nine years later, they were left with 14 children without known identities.
The Army reburied those 14 children under headstones marked “UNKNOWN.”
But Mary’s identity was known by her late niece and her namesake, Mary Jones, who embarked on a 50-year effort to locate and bring home her relative.
Now, nearly a century later, the Army says it will begin to identify and return those “lost” children buried beneath the ‘unknown’ headstones, beginning with Mary Kininnook.
“The Army is currently working to engage with Native American and Alaskan Native families and communities to address the Native American children who are known to have been buried in the cemetery but do not have a named headstone,” Office of Army Cemeteries spokesperson Ashley Topolosky wrote in an email to Native News Online. “This includes Mary Kininnook.”
‘I know she’s there somewhere’
That’s incredibly welcome news to Eleanor Hadden (Tlingit, Haida, Tsimshian), Mary Kininnook’s great niece and the daughter of Mary Jones.
Hadden, 69, has taken over her late mother’s lifelong effort to bring the remains of Mary Kininnook home. Hadden has visited Carlisle from her home state of Alaska four times seeking information, and flew to Geneva, Switzerland in 2018 to testify to the United Nations Human Rights Council about her great-aunt as one of the missing children lost in the era of Indian Boarding Schools.
“My mother worked on finding her aunt for more than 50 years,” Hadden told Native News Online. “I’m here to finish her work. When she started the search, there was nobody else doing it.”
Jones began searching for her aunt in 1967 by writing to Indian Boarding Schools across the country, asking for documentation. It would take another three decades to slowly piece together historic records—including her aunt’s student ID, death announcement, and newspaper clippings about her funeral—to place Mary as one of the “unknowns.”
When Jones first asked the Army about Mary, they were told that she wasn’t buried at Carlisle, and perhaps she was sent home.
Because records from 1908 place Mary’s death and funeral service at Carlisle, but her name does not appear on any of the headstones in the cemetery, historians and Kininnook’s descendants alike believe she must be one of the unknowns. But it will take a forensic anthropologist exhuming the grave to ultimately confirm Mary’s identity based on her gender and age.
“I know that she's there somewhere,” Hadden said. “She has to be. But which one? I don’t know.”
“It’s a really big deal”
Beginning in 2017, when Northern Arapaho tribal member Yufna Soldier Wolf successfully petitioned the Army to exhume three of the tribe’s children, the Office of Army Cemeteries formalized a 'disinterment of remains' process for returning Native remains to their lineal descendants.
Since then, the Army has paid for four transfer ceremonies, returning a total of 21 children buried at the Carlisle school cemetery to burial grounds chosen by each descendant.
Still, 176 children remain buried at the Carlisle Barracks, including the 14 unknowns and three more recently discovered unknown children found mixed into the coffins with other childrens’ remains in exhumations. In all three instances, the army reburied the unidentified additional children.
Longtime Cumberland County Historical Society historian Barb Landis said the Army’s new commitment to identify and return the ‘unknowns’ is a significant milestone.
“It’s a really big deal,” Landis said of Mary’s planned exhumation. She said that the recent discovery of a mass grave containing 215 Indigenous children in British Columbia, paired with Secretary of the Interior Deb Haaland’s Federal Indian Boarding School Initiative, has put “a laser focus” on Carlisle.
“The Army's reaction in the beginning was, ‘no, we can't, we can't return any of these graves,” Landis said. “It took 10 years for some of the nations to really push to make that happen for the (buried ancestors) that they did know of. So I think that to be able to identify and uncover the unknown is going to be the last step in this process.”
Naming the unknown
Inspired by Jones’ efforts to locate her great aunt, Landis embarked on her own multi-decade journey to put names to the lost children buried at Carlisle.
While working at the Cumberland County Historical Society in 2000, Landis started fielding lots of questions from Indian Boarding School descendants that would write, email and call asking for information about their relatives. She began researching students’ records, corresponding with descendants, and even transcribing old copies of the school newspaper to post online, a ritual that cemented her status throughout Indian country as the go-to source on Carlisle Indian Industrial School.
But it wasn’t until Landis met Jones at a powwow the Historical Society hosted to memorialize the children of Carlisle in 2000 that the historian changed the focus of her research.
“That was the first time that I realized that it might be possible to uncover the name of someone in the cemetery,” Landis said.
In more than two decades since, Landis has been able to find records placing seven other Carlisle children—two of them infants—in the cemetery without marked headstones. Archivists and researchers at the Carlisle Indian School Digital Research Center, developed by nearby Dickinson College, later identified two more children, bringing the total number of identified unknowns to nine out of 14.
Those children are:
Though the Army didn’t comment on how they will identify children among the ‘unknowns’, Hadden said a several year age gap among Mary Kininnook and Ella Soisewitza, the only other non-infant girl, would make it easy for forensic anthropologists to assign age.
The Army, working off a 1927 historic plot map, contends that only eight of the unknowns are former Carlisle students, but archivist Gerencser said that it is very likely the additional six gravesites also belong to Native students, staff, or babies.
Gerencser is still working to identify the additional five ‘unknowns’, but inconsistent record preservation makes it difficult.
“That’s what makes it tricky for the unknowns, is noting that they were specifically buried at Carlisle,” he said. “Some documents say they were going to be sent home or died on outing, (but) proving someone isn't buried in the Carlisle cemetery means you have to find out where they are buried.”
The beginning of a movement
Though the Army says it has reached out to all 574 tribal nations to notify them of the named children—including the believed unknowns— that still remain interred at Carlisle, some tribal historic preservation officers say otherwise.
Army policy puts the onus on an ancestor’s lineal descendant to ask the army for a return of remains.
Native News Online reached out to tribal historic preservation officers (THPO) at the eight tribes of the nine identified ‘unknowns.’ Three said they were aware of their specific ancestor being labeled as an ‘unknown’ at Carlisle and had plans to file for their return home.
Sac & Fox THPO Chris Boyd said the tribe is working with its repatriation committee to claim five descendants buried at Carlisle. The Seneca (Tonawanda) Nation’s THPO Joe Stahlman said Seneca Nation, like many others, does not believe in disinterment “because it could disrupt their afterlife journey.”
Mike Blackwolf, THPO at Fort Belknap Indian Community, said the tribe is aware that one of its ancestors, Solomon Brown, is believed to be buried underneath an 'unknown' headstone at the Carlisle Main Post Cemetery. Brown came to Carlisle in 1890 as an 18-year old from his reservation in Montana, according to his student enrollment card. A letter from the school to the Department of Interior shows he died four years later, reportedly of consumption.
Despite the Army's statement to Native News Online that it's "currently working to engage” with lineal descendants of the unknown children, Blackwolf said his office has not yet heard from the Army.
Still, the tribe is consulting with cultural committees on how to move forward with the exhumations of Solomon Brown and two other relatives who died while attending school at Carlisle.
"I'm close to 100 percent sure that at some point in the near future, we will be working on repatriating our children that were buried over there," Blackwolf said.
Only one tribe, Laguna Pueblo, was unaware of a relative being buried as an ‘unknown’ at Carlisle. THPO Rich Smith said the Laguna Pueblo doesn’t yet have a reburial process in place to handle ancestral repatriations.
Apache Nation, the family of infants Katie Kinzhuna and Eunice Suison, did not respond to Native News Online’s request for comment.
The Rosebud Sioux tribe, which brought home nine relatives from Carlisle in July, said the tribe plans to go back for their ‘unknown’ ancestor, Fred War Bonnet, in addition to several others that remain buried at Carlisle.
Before approving any requests, the Army says it will need to consult with lineal descendants of each individual ‘unknown,’ as well as potentially impacted Federally Recognized Tribes “as disinterment of these unknown graves impacts numerous parties and the US Army cannot open them without agreement from them on the way forward.”
As Hadden and her family wait for final approval and a slated date from the army, she holds her grandchildren extra tight. They’re 9 and 14, the ages Mary Kininnook was when she left Alaska for Carlisle — and when she died five years later.
“To put them on a boat and a train and have them travel thousands of miles at such a young age, I can't even wrap my head around that,” Hadden said. “It makes me hold onto them harder. I give them extra love because I know that Mary didn’t have it.”
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By Joyce Hanson
(October 1, 2021, 6:29 PM EDT) -- The Second Circuit in a precedential opinion has upheld bids by The New York Times and The Wall Street Journal to force the federal government to turn over a report detailing the sexual abuse committed by a former Indian Health Service pediatrician against Native American children.
The U.S. Department of Health and Human Services was wrong to claim the report on Stanley Patrick Weber was exempt from the Freedom of Information Act due to its supposed status as a "medical quality assurance record," a circuit panel found Thursday in a judgment that affirmed a Southern District of New York ruling.
U.S. Magistrate Judge Gabriel W. Gorenstein's Jan. 13 ruling said private consultant Integritas Creative Solutions LLC's report commissioned by HHS was not protected from two FOIA suits leveled by the newspapers and a reporter under a "quality of medical care" exemption. Rather, the judge said, the report was "entirely and exclusively about criminal conduct unrelated to medical care" and could not be seen as a confidential assessment of the quality of care provided to IHS patients.
The appellate court said it reviewed the Integritas report and confirms that the lower court accurately characterized the report as recounting Weber's and other IHS employees' sexual misconduct, while also analyzing managerial and administrative failures that enabled the misconduct, and recommending policy and management changes.
But the Integritas report evaluating IHS' management and administration is not a "medical quality assurance record" under the Indian Health Care Improvement Act, the Second Circuit said.
"First, the report does not evaluate the medical care provided by Weber, which IHS knew to be grossly inadequate when it solicited the report," the appellate court found. "Second, the report does not make a judgment about the degree of excellence of the medical care provided at IHS hospitals."
A New York Times spokesperson told Law360 on Friday that the decision is an important victory for transparency.
"The public should know what went wrong at Indian Health Service and why this doctor was not stopped from harming children," the spokesperson wrote in an email. "The release of the report will begin to answer those questions."
HHS didn't respond immediately to a request for comment.
On Feb. 24, however, the agency argued as it sought to reverse the January ruling that it shouldn't have to release to the Times and WSJ the report detailing more than two decades of sexual abuse committed by Weber.
In its brief before the Second Circuit, HHS said that an exception to the Freedom of Information Act blocks the release of certain "medical quality assurance" reports to encourage "candid reviews" of care provided by the IHS. And Judge Gorenstein erred in finding that the Weber report is exclusively about criminal conduct and, therefore, doesn't qualify for the medical exception, the agency claimed.
"Sexual abuse by medical providers is and must be recognized as a gross violation of patient safety and a serious failure in the provision of medical care, and it is properly investigated as part of a medical quality assurance review," HHS said.
The New York Times filed the FOIA suit against HHS in April 2020 as it sought access to the Integritas report. The Indian Health Service awarded the contract to Integritas in May 2019, and the consultant completed the work in January 2020.
The report details sexual abuse committed by Weber on two reservations from the early 1990s to 2011, pinpoints systemic issues within the government and identifies officials responsible for missing warning signs, according to court filings.
The New York Times suit was consolidated in June with a similar complaint from Wall Street Journal reporter Christopher Weaver and the newspaper's publisher, Dow Jones & Co.
Seth Berlin of Ballard Spahr LLP, a lawyer for Dow Jones and Weaver, told Law360 in an email Friday that the IHS for more than a year has tried to hide the report detailing its administrators' misconduct from the millions of tribal members who rely on the agency for health care and from the public at large.
"All of the federal judges who have reviewed this secret report agree that IHS was wrong to conceal it," Berlin wrote. "Our clients look forward to reviewing the report so that IHS and its administrators are held accountable for allowing this sexual predator to prey on the communities it was supposed to serve."
The IHS first hired Weber in 1986 for a position at an IHS hospital in Montana, and he later moved on to another IHS hospital in South Dakota. Weber left the agency in 2016 and was convicted in September 2018 of sexually abusing two boys on the Blackfeet Indian Reservation in Montana. He then faced charges in South Dakota of sexually assaulting four boys on the Oglala Sioux Tribe's Pine Ridge Indian Reservation. He was convicted there following a September 2019 trial and has since been sentenced to five terms of life imprisonment.
Circuit Judges José A. Cabranes, Rosemary S. Pooler and Joseph F. Bianco sat on the appellate panel.
The New York Times is represented by David E. McCraw and Alexandra Settelmayer of the New York Times Co.
Dow Jones and Christopher Weaver are represented by Seth D. Berlin and Matthew E. Kelley of Ballard Spahr LLP.
HHS is represented by Benjamin H. Torrance and Jennifer C. Simon of the U.S. Attorney's Office for the Southern District of New York.
The case is The New York Times Co. et al. v. the U.S. Department of Health and Human Services, case number 21-211, in the U.S. Court of Appeals for the Second Circuit.
--Additional reporting by Grace Dixon and Emma Whitford. Editing by Jay Jackson Jr.
(September 24, 2021, 3:56 PM EDT) -- A California jury Thursday awarded $5 million in damages to a marijuana company that said it was prevented from opening in Richmond by a rival group of dispensaries looking to control the local cannabis market, in what the plaintiff's attorneys characterized as the first cannabis-related antitrust case.
A Contra Costa jury found that two out of three owners of Richmond Patient's Group agreed to work together to prevent Richmond Compassionate Care Collective from leasing or buying a storefront in Richmond, which caused the company harm.
The jury said Darrin Parle and William Koziol had a hand in preventing Richmond Compassionate from being able to open a dispensary in Richmond, but found that Alexis Parle did not participate in the scheme.
As a result, the jury awarded Richmond Compassionate $5 million in damages. Joseph M. Alioto of Alioto Law Firm, an attorney for Richmond Compassionate, told Law360 on Friday that under antitrust law the damages are trebled, and the ultimate judgment will be $15 million.
Alioto said that because this is the first cannabis-related antitrust case, it's a warning that the industry is going to be governed by competition and not by monopolies.
"Anytime these small businesses attempt to get into any market, opportunity is very necessary," Alioto said. "They win or they lose based on competition, and not by conspiracies to exclude them from major markets."
Counsel for the defendants did not immediately respond to requests for comment.
Richmond Compassionate first sued in 2016, alleging that Koziol, the Parles, their company, and some other dispensaries worked together to prevent Richmond Compassionate from opening a storefront that complied with the city of Richmond's requirements, including being 1,500 feet away from any high schools and 500 feet away from lower schools.
"Such actions had the effect of restraining trade and stabilizing prices to monopolize the cannabis dispensary business in the City of Richmond," Richmond Compassionate said, noting it had suffered $15 million in damages.
The conspirators presented bogus leases, letters of intent to lease or purchase, and purchase agreements to owners and landlords, all in an effort to prevent Richmond Compassionate from finding a suitable storefront that would comply with the city's code, according to the complaint. The plaintiff said the defendants' goal was to tie landlords up with a deluge of papers.
The suit claimed a trust to restrain trade and form a monopoly in violation of the Cartwright Act. It sought damages, as well as a judgment of treble damages and attorney fees.
The Parles and Koziol's company Richmond Patient's Group was dismissed from the suit in July, according to court records, while another company, Holistic Healing Collective Inc., was dismissed in March.
Richmond Compassionate is represented by Ronald D. Foreman of Foreman & Brasso and Joseph M. Alioto of Alioto Law Firm.
Darrin and Alexis Parle are represented by Scot Canell.
William Koziol is represented by Barry Himmelstein of Himmelstein Law Network.
The case is Richmond Compassionate Care Collective v. Richmond Patient's Group et al., case number MSC16-01426, in the Superior Court of the State of California, County of Contra Costa.
By Lauren Berg
(September 28, 2021, 4:16 PM EDT) -- The Cherokee Nation announced Tuesday that it's reached a $75 million settlement with AmerisourceBergen Corp., Cardinal Health Inc. and McKesson Corp. over claims that the companies contributed to the opioid epidemic.
According to a statement by the Cherokee Nation, the deal will see the funds distributed over 6½ years, and it represents the largest settlement in its history.
"Today's settlement will make an important contribution to addressing the opioid crisis in the Cherokee Nation Reservation; a crisis that has disproportionately and negatively affected many of our citizens," Cherokee Nation Principal Chief Chuck Hoskin Jr. said in a statement Tuesday. "This settlement will enable us to increase our investments in mental health treatment facilities and other programs to help our people recover."
The suit is among many by municipalities, Native American tribes and others consolidated in multidistrict litigation that claim that opioid makers and distributors as well as pharmacies are responsible for the nationwide opioid epidemic, with claims that they either misled the public about the dangers of opioids and their addictive qualities, or that they failed to take measures to prevent the illegal diversion and sale of the drugs, leaving those municipalities saddled with the costs of addressing the epidemic.
Cherokee Nation Attorney General Sara Hill said the settlement will go toward helping to reduce and prevent opioid addiction and its consequences within the reservation.
The settlement comes three weeks after U.S. Magistrate Judge Stephen P. Shreder paused the Cherokee Nation's bellwether trial while the parties discussed a possible global settlement of claims by the Cherokee and other tribes.
While the settlement announced Tuesday only affects claims by the Cherokee Nation, according to attorneys for the tribe, the three companies said in a joint statement that the sum represents an amount consistent with what the nation would receive under a broader settlement with the other tribes in the Ohio MDL.
The Cherokee Nation's suit also includes claims against major pharmacy chains; like drug distributors and manufacturers, pharmacies are facing thousands of lawsuits accusing them of contributing to a deadly plague of narcotic abuse.
The settlement does not affect those claims, the Cherokee Nation said in its statement, adding it intends to "vigorously pursue" those claims through trial, which is expected to be held next fall.
The Cherokee Nation is represented by its attorney general's office, Boies Schiller Flexner LLP, Fields PLLC, and Whitten Burrage.
McKesson is represented by Covington & Burling LLP, and Doerner Saunders Daniel & Anderson LLP.
Cardinal Health is represented by Williams & Connolly LLP, and Norman Wohlgemuth LLP.
AmerisourceBergen is represented by Reed Smith LLP, and Crowe & Dunlevy.
The case is Cherokee Nation v. McKesson Corp. et al., case number 6:18-cv-00056, in the U.S. District Court for the Eastern District of Oklahoma. The MDL is In re: National Prescription Opiate Litigation, case number 1:17-md-02804, in the U.S. District Court for the Northern District of Ohio.
By Mike Curley
--Additional reporting by Melissa Angell and Jeff Overley. Editing by Adam LoBelia.
A sheriff in Georgia is protected by qualified immunity after letting an abusive deputy stay on the streets. The deputy later sexually assaulted me.
The doctrine of qualified immunity has been used to protect police from civil lawsuits and trials. Here's why it was put in place.
Valentine’s Day 2016 wasn’t spent celebrating love and romance. Instead, it was the day deputy Thomas Carl Pierson, of Georgia's Harris County Sheriff’s Office, grossly violated my constitutional rights.
Feb. 14, 2016, was the day Pierson sexually assaulted me.
I later found out that Pierson's conduct shouldn't have been a surprise, and that the Sheriff's Office and the sheriff himself – who knew Pierson was dangerous and decided to let him keep working anyway – were shielded from civil liability by the obscure legal doctrine of qualified immunity.
My aggressor initially pulled me over for speeding and gave me a warning after being chatty for a few minutes.
He then asked me to pull off farther down a small road. When I didn’t, he followed me for several miles and pulled me over again using his blue lights.
Pierson then turned off his dash cam and asked me to drive down a secluded road. I was terrified and did as he said.
When I stopped, he pulled me from the car and sexually and physically abused me. He then warned me not to tell anyone and drove away.
Pierson convicted of sexual assault
Unlike most sexual assault victims who fear not being believed or have other reasons for not speaking up, I immediately reported the incident. In August 2017, Pierson was found guilty of sexual assault on a person in custody and six other charges related to traffic stops with myself and two other women. Two months later, he was sentenced by a Georgia Superior Court judge.
In the course of the lengthy legal process, I found out that six months before his assault on me, on Aug. 31, 2015, Pierson was involved in an excessive force incident that killed Nicholas Dyksma. Pierson's boss, Sheriff Robert Michael Jolley, knew about the officer's involvement in Dyksma's death.
Jolley let Pierson continue to patrol the streets of Harris County, anyway.
In July 2018, the same 11th Circuit Court judge who would later rule on my case, heard the case on behalf of Nicholas Dyksma's family. Judge Clay Land ruled that Pierson wasn't protected under qualified immunity in the Dyksma case, but that the sheriff and his office were. That case was settled on appeal.
Kimberly Beck: My son was killed by a park ranger. Qualified immunity means I may never see justice.
I sued Pierson, Harris County and Sheriff Jolley for violations of my Fourth and 14th Amendment rights and civil rights violations based on Jolley's policies and customs of tolerating abusive cops on the force.
I have suffered from a litany of physical and mental health issues since the brutal assault by a police officer. But because of qualified immunity laws, I am left without any substantive legal recourse, and Jolley remains in office.
Qualified immunity left me with no recourse
The judge-made doctrine of qualified immunity was created during the 1960s civil rights era and was later expanded in the 1980s. Its intentions appear noble at first – the idea was to provide police officers and other government officials with protection from lawsuits so long as their conduct didn't violate "clearly established law or constitutional rights of which a reasonable officer would have known."
In practice, however, the second part of the doctrine, which asks whether a constitutional right that was violated was "clearly established," has come to mean that as long as there is not a factually identical case in the same jurisdiction, police officers, their superiors, and other abusive and negligent government workers cannot be held civilly liable for violations of the Constitution.
Qualified Immunity: My brother wanted to go to the bathroom. Police killed him instead.
Until the U.S. Supreme Court steps in, judges can't seem to make up their minds about the doctrine, and we end up with absurd case law as a result.
Judge Clay Land ruled that Jolley and his office were protected by the doctrine of qualified immunity in my case because they weren't on notice that an abusive cop might engage in a different kind of violence – that of sexual assault. The judge decided that Jolley was off the hook because the facts weren't the same in the two cases
The injustice does not end there. Even though Pierson was held criminally liable in my case, because his conduct was found to be intentional, the Sheriff's Office claims he is not covered under Harris County's insurance policy. Since he is jailed and doesn't have an income, he is essentially judgment proof.
While I find comfort in knowing that my aggressor is behind bars, seeing Jolley and the Harris County Sheriff's Department escape civil liability is a miscarriage of justice that I have to deal with every single day for the rest of my life.
That is why I advocate for reform of qualified immunity laws. In March, the U.S. House passed the George Floyd Justice in Policing Act. It would lower the criminal intent standard from “willfully” and inserting “knowingly or recklessly” to convict a law enforcement officer for misconduct in a federal prosecution.
It also would limit qualified immunity as a defense to liability in a civil action against a police officer and grant subpoena power to the Department of Justice
Qualified immunity keeps bad cops on the streets, prevents victims from recovering for damages and shields police departments from their legal obligations.
Harris County and Sheriff Jolley gave Thomas Pierson access to his badge and sent him out to “work.” They should be held accountable.
Lynette Christmas, a mother of three and grandmother of five, is a sexual assault survivor and local advocate for justice.
This column is part of a series by the USA TODAY Opinion team examining the issue of qualified immunity. The project is made possible in part by a grant from Stand Together. Stand Together does not provide editorial input.
Two weeks after the 6o-foot-tall statue of Robert E. Lee was removed in Richmond, Va., the former Confederate capital city has become home to a new statue, this one commemorating the abolition of slavery.
The Emancipation and Freedom Monument — designed by Thomas Jay Warren, a sculptor based in Oregon — was unveiled Wednesday on Brown's Island on the James River in downtown Richmond, about 2 miles from where the Lee statue once stood.
It consists of two 12-foot bronze statues of a man and a woman holding an infant who have been newly freed from slavery. The statue's pedestal includes the names, images and stories of 10 Virginians who contributed to the struggle for freedom before and after emancipation, including Dred Scott, whose lawsuit led to the Supreme Court decision that persons of African descent were not U.S. citizens; Nat Turner, who led a successful slave rebellion; and educator Lucy Simms.
"It really captured what we were trying to do in that the figures capture the emotion of emancipation, but the people on the base capture who else was involved of the process of fighting against slavery, leading to emancipation, and fighting for freedom and equality going forward," state Sen. Jennifer McClellan told NPR.
McClellan, who is head of the Dr. Martin Luther King, Jr. Memorial Commission, which took the lead on commissioning the statue, has been working to build the monument since 2011.
The monument was originally supposed to be revealed in 2019 as part of the 400th anniversary of 1619, when the first enslaved Africans arrived in Virginia.
But the fact that the monument will now make its debut after some of the largest Confederate statues in Richmond of Lee and other generals are gone is a moment of "poetic justice," McClellan says.
"This monument has always represented an important part of healing," McClellan said. "Having that happen after COVID, after the George Floyd murder and the reckoning with racial inequity and after the monuments started coming down, it's much more healing than it would have been in 2019."
by Deepa Shivaram
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.