After John graduated from high school and served this country in the Army, he met the love of his life and became a devoted father to five children, changing diapers, helping with homework, shuttling to and from games, and supporting his family through thick and thin. But his life changed forever when federal law enforcement invented a fake crime and talked John into committing it.
Federal prosecutors charged John with planning to rob a nonexistent drug stash house and distribute a fictitious amount of nonexistent cocaine. Suddenly, as a result of the fabricated drugs, John found himself locked in a jail cell. In such cases, the government has the power to set a high mandatory penalty by inflating the amount of nonexistent drugs they claim is in the nonexistent stash house.
Because the government in John’s case had arbitrarily chosen an enormous quantity of fabricated drugs, John faced a mandatory minimum: A one-size-fits-all penalty created by Congress that would require the judge to sentence him to 25 years behind bars. It didn’t matter that John was a veteran, a father, and an upstanding citizen who had been tricked into committing an imaginary crime. John spent years—841 days, to be exact—locked in a cage at the federal jail. His wife and children were rendered homeless; they bounced around from family member to family member, often sleeping on floors. John’s wife worked tirelessly to make ends meet while his displaced kids struggled to keep up with classes and sports—all while he sat caged, unable to help.
The Federal Criminal Justice Clinic at the University of Chicago Law School intervened on behalf of John and 42 others charged in fabricated stash house cases. Building on groundbreaking racial discrimination litigation initiated by now-Judge Candace Jackson-Akiwumi, criminal defense attorney Steven Saltzman, Assistant Federal Defender Paul Flynn, and others, Clinic professors Judith Miller, Erica Zunkel, Alison Siegler, and their students worked with a coalition of federal defenders and CJA lawyers to file motions to dismiss the cases, contending that their clients were victims of racial discrimination. See Alison Siegler & William Admussen, Discovering Racial Discrimination by the Police, 115 Nw. U. L. Rev. 987, 1009, 1024–25 (2021); Rachel Poser, Stash-House Stings Carry Real Penalties for Fake Crimes, New Yorker (Oct. 18, 2021). After a hard-fought court battle, the lawyers convinced prosecutors to dismiss the mandatory minimums.
Instead of spending 23 more years behind bars, John returned home to his family. Soon after his release, he attended his son Tristan’s eighth-grade graduation, one of the many milestones a mandatory minimum would have locked him out of. John became a medivan driver praised by his patients as a kind man who boosts their spirits and handles their oxygen tanks and wheelchairs with care. But the outcome of John’s case is an exceptionally rare result, and advocates like Erica Zunkel continue litigating to release people serving decades-long mandatory sentences in stash house cases. See Annie Sweeney & Jason Meisner, “Like Seeing in Color After Being Colorblind”: After 12 Years in Prison for Controversial Stash-House Conviction, Dwayne White Tastes Freedom, Chi. Trib. (Aug. 20, 2021).
At the federal level, mandatory minimum penalties, like those prosecutors levied against John, form the cornerstone of what civil rights lawyer Alec Karakatsanis has called the “human caging” system. Alec Karakatsanis, Policing, Mass Imprisonment, and the Failure of American Lawyers, 128 Harv. L. Rev. F. 253, 262 (2015). Prosecutors’ use of mandatory minimums in over half of all federal cases has driven the exponential growth in the federal prison population in recent decades—growth that disproportionately impacts poor people of color. See Charles Colson Task Force on Federal Corrections, Transforming Prisons, Restoring Lives 9, 23 (2016), (Colson Report).
If white fathers and husbands faced the same treatment as John, no one would stand for it. As scholar Cornel West observes: “There is no doubt that if young white people were incarcerated at the same rates as young [B]lack people, the issue would be a national emergency.” Cornel West, Foreword to Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, at x (2d ed. 2012). But it’s common to depersonalize and dehumanize those on the receiving end of the criminal legal system, “stripping [them] of human qualities [until] they are no longer viewed as [people] with feelings, hopes and concerns, but as subhuman objects.” Lawton P. Cummings, Can an Ethical Person Be an Ethical Prosecutor? A Social Cognitive Approach to Systemic Reform, 31 Cardozo L. Rev. 2139, 2154 (2010).
This is systemic racism in action. As Pulitzer Prize-winning author Isabel Wilkerson writes, “A caste system relies on dehumanization to lock the marginalized outside of the norms of humanity so that any action against them is seen as reasonable.” Isabel Wilkerson, Caste: The Origins of Our Discontents 142 (2020). Wilkerson identifies African Americans as the “out-group” the United States has “reduced . . . to an undifferentiated mass of nameless, faceless scapegoats, the shock absorbers of the [nation’s] collective fears.” Id. Racial disparities in the application of mandatory minimum penalties are a particularly stark illustration of Wilkerson’s thesis. As the Federal Criminal Justice Clinic testified before Congress in advocating for an end to mandatory minimums, “We must recognize that we are, indeed, facing a national emergency.” Controlled Substances: Federal Policies and Enforcement: Hearing Before the H. Subcomm. On Crime, Terrorism, and Homeland Security, (Statement of Alison Siegler, Erica Zunkel, and Judith P. Miller, Fed. Crim. Just. Clinic, Univ. of Chi. Law Sch.), 117th Cong. (Mar. 11, 2021).
We stand at a critical crossroads. To dismantle this country’s dehumanizing and racially skewed human caging system, we must eliminate mandatory minimums. Forget swinging the pendulum from tough-on-crime to leniency; it always swings back. Instead, it is time for a paradigm shift. A paradigm shift occurs in three phases: It starts with a dominant paradigm, moves through a crisis phase, and ends with “the crisis [being] resolved by a revolutionary change in world-view” that constitutes a new dominant paradigm. John Naughton, Thomas Kuhn: The Man Who Changed the Way the World Looked at Science, The Guardian (Aug. 28, 2012).
This article traces the mandatory minimums paradigm shift, from the dominant paradigm of mandatory minimums through the crisis phase in which that paradigm has come under fire for tying judges’ hands, shifting power to prosecutors, cementing racial and economic disparities, and failing to advance community safety. It is time to replace the debunked paradigm with a new dominant paradigm: Congress must take action, eliminate mandatory minimums, and renounce excessive punishments that are inextricably linked to slavery and racism.
The Dominant Paradigm of Mandatory Minimums
Currently, the dominant paradigm in the criminal legal system is the myth that imposing harsh mandatory minimum sentences and locking people of color in cages are necessary to keep white people safe. Over the past century, this dominant paradigm has become the subject of dispute and controversy. Congress first enacted mandatory minimums for drug offenses in the early 20th century. See Erica Zunkel & Alison Siegler, The Federal Judiciary’s Role in Drug Law Reform in an Era of Congressional Dysfunction, 18 Ohio State J. Crim. L. 283, 295 (2020), (citing Mona Lynch, Hard Bargains: The Coercive Power of Drug Laws in Federal Court 15 (2016)). But reformers pushed back, and by midcentury, a rehabilitative sentencing model began to replace the punitive model of the past. In 1970, Congress repealed most drug-related mandatory minimums, taking more of a “public health approach” to drug policy and “acknowledging enforcement problems that had been recognized for centuries.” Stephanie Holmes Didwania, Mandatory Minimum Entrenchment and the Controlled Substances Act, 18 Ohio St. J. Crim. L. 25, 33 (2020); Michael Tonry, Mandatory Penalties, 16 Crime & Just. 243, 251 (1992).
In keeping with the chaos that arises from a paradigm shift, by the mid-’70s, anti-imprisonment and antidiscrimination reformers on the left began railing against the rehabilitative model for giving judges too much discretion and precipitating disparities. Zunkel & Siegler, supra, at 297. Paradoxically, these reformers—led by Senator Ted Kennedy—ultimately helped usher in the current tough-on-crime era. In the mid-’80s, mandatory minimums reentered the federal system with a vengeance as a pillar of President Reagan’s “War on Drugs.” By the end of the 1980s, all 50 states had enacted mandatory minimums. See Tonry, supra, at 251. The ensuing 40 years have seen an unprecedented rise in incarceration.
But the foundation of the mandatory minimums paradigm is beginning to crack, opening a critical window in which a new paradigm can emerge.
The Roots of a New Dominant Paradigm: Mandatory Minimums Are Bad Policy
Over the past decade, a new dominant paradigm has begun to take root: Bipartisan consensus that mandatory minimums are bad policy because they reallocate power from judges to prosecutors, cement racism and classism, and fail to advance community safety. One catalyst for this new consensus was Michelle Alexander’s 2010 book The New Jim Crow: Mass Incarceration in the Age of Colorblindness. Alexander’s thesis—that mass incarceration perpetuates the racial caste system of slavery—is exactly the kind of revolutionary change in worldview that characterizes paradigm shifts. The momentum behind that new worldview has gathered strength through other seminal works, including Bryan Stevenson’s Just Mercy (2014), Ta-Nahisi Coates’ Between the World and Me (2015), James Forman’s Locking Up Our Own (2017), and Wilkerson’s Caste (2020).
The recognition that “the criminal justice system that has emerged over the past half century is  deeply intertwined with the legacy of white supremacy” reinforces the countless policy critiques of mandatory minimums. Jeremy Travis & Bruce Western, The Era of Punitive Excess, Brennan Ctr. (Apr. 13, 2021). Federal judges have been speaking out against these severe penalties for decades. President Biden has likewise called for an end to mandatory minimums. The Biden Plan for Strengthening America’s Commitment to Justice, Biden Harris Democrats (2021). But only Congress has the power to fully abolish federal mandatory minimums.
Mandatory Minimums Tie Judges’ Hands
Mandatory minimums prevent judges from meting out justice in an individualized manner. Take Tracy Conley’s case. Tracy was having an ordinary day until he ran out of gas on his way home from work and was netted in the same kind of fabricated stash house operation as John. Even the federal judge presiding over Tracy’s case spoke of “the injustice underlying his prosecution,” accentuating that Tracy “found himself ensnared in the [government] scheme, not because he sought to rob a stash house or commit a crime, but because he did not have money to purchase gas for his trip home from his legitimate job and happened to run into” someone who brought him along to a rendezvous with the police. United States v. Conley, 2021 WL 825669, at *4 (N.D. Ill. Mar. 4, 2021). Because of mandatory minimums, the judge was forced to commit Tracy to prison for 15 years during his original sentencing hearing. As the judge herself later explained, “the fake drug amount . . . that the [prosecutors] arbitrarily decided was in the fake stash house” and other government fabrications set a 15-year minimum and required her to impose a sentence she knew was “grossly disproportionate” and unjust. Id. at *4, *5.
Pop culture focuses on trials, but, in reality, sentencing is the main event in the criminal system. The overwhelming majority of people enmeshed in the federal system are convicted and end up at sentencing. In 2019, prosecutors charged 87,266 people with federal crimes. See Dep’t of Just., United States Attorneys’ Annual Statistical Report Fiscal Year 2019, tab. 3A, at 12 (2019). Of the people who went through the full court process, 97 percent pled guilty while just 3 percent took their cases to trial. See Zunkel & Siegler, supra, at 295. Fewer than 300 people were acquitted and found not guilty at trial; the other 99.7 percent appeared before a judge for sentencing.
At sentencing, a judge decides how to punish someone who has been convicted—whether to let them return home to their family or to lock them in a prison cell. Ideally, the sentencing judge should be able to look at someone like John or Tracy as a complete human being and carefully calibrate their punishment by considering their history, their military service, the needs of their children and family, whether their crime was motivated by desperation or greed, whether they were a pawn or a kingpin, and other similarly relevant factors.
But none of this happens when a mandatory minimum shackles the judge. If a prosecutor decides to charge someone like Tracy with a crime that carries a mandatory minimum penalty and that person is convicted, the judge is required to lock that person in prison for whatever amount of time the mandatory minimum charge carries, be it 5, 10, 15, or 20 years—sometimes even life. The judge is prohibited from considering that person’s individual circumstances, accounting for the motivations behind their crime, or showing mercy. Mandatory minimums thus “act as sledgehammers rather than scalpels,” falling with equal force on people who are dramatically different from each other. Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463, 2487 (2004).
Mandatory Minimums Shift Power from Judges to Prosecutors
As Justice Breyer has observed, mandatory minimums are also unjust because they “transfer sentencing power to prosecutors, who can determine sentences through the charges they decide to bring.” Harris v. United States, 536 U.S. 545, 571 (2002) (Breyer, J., concurring in part). Sentencing is supposed to be carried out by a neutral judge who decides whether to lock someone in prison after hearing arguments from both sides. But mandatory minimums upend this system by positioning one adversary—the prosecutor—as the ultimate decision-maker, thus barring the judge from considering a person’s life experience, culpability, or family responsibilities. As one former federal judge recounts: “I was often prohibited from assessing a defendant’s history, personal characteristics or role in the offense. In sentencing, where judgment should matter most, I could not exercise my judgment. I felt more like a computer than a judge.” Shira A. Scheindlin, I Sentenced Criminals to Hundreds More Years Than I Wanted to. I Had No Choice, Wash. Post (Feb. 17, 2017).
Mandatory minimums enable prosecutors to render mitigating facts legally irrelevant. Consider Professor Paul Butler’s chilling description of the psychology of the prosecutor, based on his own experience: “In your day to day work as a prosecutor, defendant sob stories about growing up in foster care, getting beat up by the police, or not being able to afford rehab are obstacles to your success.” Paul Butler, Let’s Get Free: A Hip-Hop Theory of Justice 116 (2009).
Mandatory minimums also “provide prosecutors with weapons to bludgeon defendants into effectively coerced plea bargains” and convince people to cooperate in prosecutions against others. Jed S. Rakoff, Mass Incarceration: The Silence of the Judges, N.Y. Rev. of Books (May 15, 2015). This produces the Cooperation Paradox: Big fish who are more culpable and have information about other people committing crimes can avoid a mandatory minimum by cooperating in the prosecution of others. Meanwhile, little fish who are less culpable—like Tracy—are yoked with high mandatory minimums. They become casualties of a process that prioritizes increasing the number of convictions over proportionality or mercy. Consequently, the least culpable players incur the most severe punishments, while the most culpable players leverage their knowledge into lenient plea deals.
Mandatory Minimums Create Racial and Economic Disparities
Prosecutors’ power over mandatory minimums generates racial and economic disparities, obliterating any pretense of an unbiased system. To compound the problem, the binding nature of a mandatory minimum penalty means that judges have no power to rectify these government-created disparities.
“Prosecutors have not uniformly sought mandatory minimum sentences, which has led to greater disparities, particularly on the basis of race.” Rachel E. Barkow, Categorical Mistakes: The Flawed Framework of the Armed Career Criminal Act and Mandatory Minimum Sentencing, 133 Harv. L. Rev. 200, 201 (2019). The fact that these sledgehammers are used primarily against people of color invokes Wilkerson’s observation that “[i]ndividuality, after all, is a luxury afforded the dominant caste.” Wilkerson, Caste, supra, at 142. The racial disparities in prosecutors’ use of mandatory minimums render the dehumanization inherent in this sentencing tool even more problematic.
Take federal drug crimes, for instance, where 70 percent of the people whom prosecutors choose to charge with a mandatory minimum are people of color. A recent study finds that prosecutors’ mandatory minimum charges resulted in Black individuals spending more time in prison than whites for the exact same crimes. See M. Marit Rehavi & Sonja B. Starr, Racial Disparity in Federal Criminal Sentences, 122 J. Pol. Econ. 1320, 1324, 1349, 1350 (2014). In fact, prosecutors bring mandatory minimum charges “65% more often” against Black individuals, all else remaining equal. Id. at 1350 (emphasis added). Eliminating this charging disparity would “reduce the . . . number of [B]lack men in federal prison by almost 11,000” and would result in a cost savings of over $230 million per year. Id.
Another study similarly finds that some federal prosecutors charge Black and Latinx individuals more often than white individuals with possession or sale of a quantity of drugs just sufficient to trigger a mandatory minimum; the disparity is highest “in states with higher levels of racial animus.” Cody Tuttle, Racial Disparities in Federal Sentencing: Evidence from Drug Mandatory Minimums, Job Market Paper (2019). To make matters worse, Black individuals convicted of federal drug offenses are the least likely of any racial group to receive a sentence below the mandatory minimum—a result that itself depends on the prosecutor’s acquiescence. See Zunkel & Siegler, supra, at 288.
Beyond these race-based disparities, mandatory minimums also have a disparate impact on indigent individuals. Congress chose to establish mandatory minimums for crimes “that most affect people in poverty,” and prosecutors disproportionately charge minimums for such crimes. Michael Stamm, Between a Rock and Discriminatory Place: How Sentencing Guidelines and Mandatory Minimums Should Be Employed to Reduce Poverty Discrimination in the Criminal Justice System, 24 Geo. J. on Poverty L. & Pol’y 399, 410, 400 (2017).
Mandatory Minimums Do Not Advance Public Safety and Carry High Societal Costs
Mandatory minimums are bad policy because they contribute to mass incarceration without advancing community safety. In the federal system, the average time in prison for a mandatory minimum drug crime is over 11 years, and the minimums can skyrocket as high as life. See Colson Report, supra, at 9. Since 1985, prison time served has doubled for federal drug offenses and has nearly tripled for gun offenses. See id. at 8.
Supporters of mandatory minimums contend that these high sentences advance public safety, but empirical evidence gives the lie to that theory. In reality, mandatory minimum sentences do not prevent people from committing future crimes. Instead, any prison time at all actually increases the risk of future crime. See, e.g., Francis T. Cullen et al., Prisons Do Not Reduce Recidivism: The High Cost of Ignoring Science, 91 Prison J. 48S, 50S (2011); Damon M. Petrich et al., Custodial Sanctions and Reoffending: A Meta-Analytic Review, 50 Crime & Just. (2021). Florida experienced a 50 percent spike in crime rates after enacting mandatory minimums. See Mirko Bagaric et al., Nothing Seemingly Works in Sentencing: Not Mandatory Penalties; Not Discretionary Penalties—But Science Has the Answer, 53 Ind. L. Rev. 499, 513 (2020). Long sentences also make it more difficult for people to reintegrate into society. Because “incarceration is inherently criminogenic,” mandatory minimums only exacerbate this situation. Shon Hopwood, Improving Federal Sentencing, 87 UMKC L. Rev. 80, 91 (2018). More broadly, overreliance on prisons makes communities less safe by diverting resources from other critical public safety needs. In contrast, studies show that eliminating mandatory minimums does not increase crime or drug abuse. See, e.g., Nancy Gertner & Chiraag Bains, Mandatory Minimum Sentences Are Cruel and Ineffective. Sessions Wants Them Back, Wash. Post (May 15, 2017); Greg Newburn & Sal Nuzzo, Mandatory Minimums, Crime, and Drug Abuse; Lessons Learned 9 (The James Madison Inst. 2019).
The economic costs of mandatory minimums are similarly destructive: Every 15-year minimum sentence imposed today costs taxpayers over half a million dollars. See Annual Determination of Average Cost of Incarceration Fee (COIF), 84 Fed. Reg. 63,891 (Nov. 19, 2019). The Department of Justice admits that the total number of people in federal prison rose by nearly 900 percent from 1980 to 2013. “Mandatory minimums drove the increase in incarceration,” making the federal prison system seven times more expensive today than it was in 1980. Colson Report, supra, at 10–14. At the state level, the elimination of mandatory minimums has resulted in huge savings: Texas saved $2 billion, Georgia saved $20 million, and Michigan saved $15 million. See Gregory Newburn, Mandatory Minimum Sentencing Reform Saves States Money and Reduces Crime Rates 4–6 (2016).
To quote a federal judge: “[T]he long-term price of mass incarceration is too high to pay, not just in economic terms, but also in terms of shared social values.” Rakoff, supra. Long prison sentences also make it more difficult for people to reintegrate into society. Incarcerated individuals lose their jobs and wages, suffer mentally and physically, and face collateral consequences upon release. See Colson Report, supra, at 15. Their children have worse academic, behavioral, and emotional outcomes and are more likely to end up in prison themselves. Id.
It is time to recognize that mandatory minimums are inimical to the interests of community safety, economic efficiency, and rehabilitation.
Congress Must Codify the New Paradigm
The solution to the mandatory minimums crisis is simple: Congress must jettison the discredited paradigm, abolish mandatory minimums, and return to judges the power to treat people like human beings. To quote Justice Ruth Bader Ginsburg, “The ball is once again in Congress’s court.” Vance v. Ball State Univ., 570 U.S. 421, 470 (2013) (Ginsburg, J., dissenting).
Because federal prosecutors’ use of mandatory minimums is driving racial disparities through astronomically long and ineffective sentences, it is tempting to ask President Biden’s Department of Justice to set things right. Strikingly, although prosecutors have long been the primary proponents of mandatory minimums, even some of the nation’s chief federal prosecutors have denounced the tactic as bad policy. Former Attorney General Eric Holder criticized “draconian mandatory minimum sentences” for their tendency to “have . . . a destabilizing effect on particular communities, largely poor and of color.” Press Release, Dep’t of Just., Attorney General Eric Holder Delivers Remarks at the Annual Meeting of the American Bar Association’s House of Delegates (Aug. 12, 2013). And during his nomination hearing, current Attorney General Merrick Garland testified, “We should . . . , as President Biden has suggested, seek the elimination of mandatory minimum[s].” Merrick Garland, Senate Judiciary Committee Holds Hearing on the Nomination of Merrick Garland to Be Attorney General, Day One (Feb. 22, 2021).
Yet despite Garland’s testimony, his Department of Justice has given no sign that it will cease charging mandatory minimums. In fact, earlier this year, Garland reinstated a 2010 Holder policy that incorporated a long-standing directive to federal prosecutors requiring the charging of mandatory minimums whenever possible. Memorandum from the Office of the Attorney General (Jan. 29, 2021). To make matters worse, Garland chose not to reinstate a 2013 Holder policy that directed prosecutors to decline to charge a mandatory minimum in nonviolent drug cases.
“Progressive” prosecution is important to dismantling mass incarceration. For example, at the pretrial jailing stage, Attorney General Garland has the power to “disrupt the culture of [pretrial] detention that pervades the ranks of federal prosecutors.” Alison Siegler & Kate M. Harris, How Did the “Worst of the Worst” Become 3 out of 4? Merrick Garland Can Bring Bail Reform to the Federal Justice System, N.Y. Times (Feb. 24, 2021). At the charging and sentencing stages—where mandatory minimums come into play—Garland also has real power to reduce racialized over-incarceration. He can and should instruct federal prosecutors to refrain from charging and seeking mandatory sentences, especially in drug cases, where popular opposition to mandatory minimums is strongest.
But progressive prosecution alone will not solve the mandatory minimums crisis. Evidence suggests that policy shifts by federal prosecutors only change things at the margins and are easily rolled back by the next administration. For example, a recent empirical analysis of the Obama administration’s efforts to temper mandatory minimums found no meaningful reduction of sentence length or racial disparities in sentencing, leading to the conclusion that the only answer is “systemic reform.” Stephanie Holmes Didwania, Mandatory Minimums and Federal Sentencing 37 (Temple U. Legal Stud. Research Paper, Paper No. 2020-01).
Given that reform efforts by the Department of Justice would provide, at best, a temporary fix, congressional action is needed to shift the paradigm and mitigate racial inequity. Congress must repeal federal mandatory minimums, make that change retroactive for those already serving mandatory minimum sentences, and incentivize states to follow suit. During his campaign, President Biden vowed to support this congressional paradigm shift: “As president, [I] will work for the passage of legislation to repeal mandatory minimums at the federal level. And, [I] will give states incentives to repeal their mandatory minimums.” The Biden Plan for Strengthening America’s Commitment to Justice, supra.
Many in Congress now recognize that systemic racism is woven into the fabric of mandatory minimums and the criminal legal system writ large. The House just passed Senator Booker’s EQUAL Act by a bipartisan vote. This bill would eliminate the crack/powder disparity that results in longer mandatory minimum sentences for Black individuals. See EQUAL Act, S. 79, 117th Cong. (2021). The Biden administration and its Department of Justice have endorsed the EQUAL Act, acknowledging that it would remedy unwarranted racial disparities. See, e.g., Sean Sullivan & Seung Min Kim, Biden Administration Endorses Bill to End Disparity in Drug Sentencing Between Crack and Powder Cocaine, Wash. Post (June 22, 2021). Attorney General Garland even appears to be requiring federal prosecutors to inform judges of this support during individual sentencing hearings. Yet the EQUAL Act faces steep opposition in the Senate.
The EQUAL Act would be an important step forward, but it would not end mandatory minimums. The most comprehensive legislative solution introduced in recent years is Representative Waters’s (D-CA) Mandatory Minimum Sentence Reform Act of 2017, which would have repealed all mandatory minimums for federal drug crimes—a true paradigm shift. See Mandatory Minimum Sentence Reform Act of 2017, H.R. 3800, 115th Cong. (2017). Senators Durbin (D-IL) and Lee’s (R-UT) bipartisan Smarter Sentencing Act of 2021 has more momentum but would enact a narrower reform, reducing mandatory minimums for certain nonviolent drug offenses and making other reforms retroactive. See Smarter Sentencing Act of 2021, S. 1013, 117th Cong. (2021).
Representative Bobby Scott’s (D-VA) SAFE Justice Act likewise does not end mandatory minimums, but it does the next best thing: It grants judges the discretion to refuse to impose a mandatory minimum if it would result in an “unjust sentence.” See SAFE Justice Act, H.R. 4261, 115th Cong. (2017). The bill also allows judges presiding over fabricated stash house cases to decline to impose mandatory minimums set by a fictitious amount of non-existent drugs. Id. Under this law, judges would finally have the authority to avoid imposing “grossly disproportionate” sentences on those like John and Tracy who are snared in fake stash house cases. See Conley, 2021 WL 825669, at *4.
It is time to institute a new paradigm, one that abjures mandatory minimums and respects human dignity. We must put an end to “the punishment bureaucracy” and the toxic and discredited notion that the caging of human beings like John and Tracy advances community safety. Alec Karakatsanis, The Punishment Bureaucracy: How to Think About “Criminal Justice Reform,” 128 Yale L.J. F. 848 (2019). Attempts to stitch up the tattered old paradigm are futile and will not eradicate the spreading stain of racial inequity. We must instead heed Justice Sonia Sotomayor’s message that, until we value the lives, rights, and liberties of those on the receiving end of the system, “our justice system will be anything but.” Utah v. Strieff, 136 S. Ct. 2056, 2071 (2016) (Sotomayor, J., dissenting).
Among the American Indian Movement (AIM) membership, February 27th is known as Liberation Day to mark the occupation of the hamlet of Wounded Knee on the Pine Ridge Indian Reservation in South Dakota.
It was 49 years ago, AIM began to occupy Wounded Knee as a protest against the federal government and its policies towards Native Americans.
The occupation lasted 71 days. It was viewed nationally as a standoff between AIM and the federal government.
“At the time of Wounded Knee 1973, I was a member of the Denver chapter of the American Indian Movement. I spent 71 days at the Little Big Horn bunker with these other warriors. We survived eleven fire fights, while protecting the Eastern boundaries of the community. The big issue at the time was protecting treaty rights of the Oglala Sioux Nation, and seeking compliance of those treaty rights by the U.S. government,” Lenny Foster (Diné), who is the spiritual advisor to Leonard Peltier, said to Native News Online about his involvement at Wounded Knee.
On March 13, assistant attorney general for the Civil Division of the US Justice Department, Harlington Wood Jr., became the first government official to enter Wounded Knee without a military escort. Determined to resolve the deadlock without further bloodshed, he met with AIM leaders for days and, while exhaustion made him too ill to conclude the negotiation, he is credited as the “icebreaker” between the government and AIM.
Both sides reached an agreement on May 5 to disarm, and three days later the siege ended and the town was evacuated after 71 days of occupation; the government then took control of the town. During the incident, a Cherokee and an Oglala Lakota were killed by the FBI.
So-called “progressive” prosecutors, elected on a wave of support for reforming the justice system, are now battling opponents around the country who blame them for the increase in crime. The troubles of more well-known figures like George Gascón in Los Angeles, Chesa Boudin in San Francisco, or Alvin Bragg in New York have made headlines. But the battles in jurisdictions outside the national spotlight offer a revealing glimpse of the movement’s strength.
In an interview co-published by The Crime Report and The Imprint, Contra Costa County (California) DA Diana Becton offers an impassioned defense of her record in changing the juvenile justice system in her jurisdiction.
In 2017, three months after she became the first woman and the first African American to lead the Contra Costa (California) District Attorney’s office, Diana Becton worked to abolish juvenile justice fees that fall most heavily on low-income families of color.
Since then, she has publicly released reports on officer-involved fatalities and established “Clean Slate Day” for former offenders to clear their criminal records. Her Reimagine Youth Justice Task Force is seeking alternatives to juvenile hall, a bold aim in one of the more moderate Democratic counties in the otherwise liberal San Francisco Bay Area.
Late last year, Becton, 70, sat down at her county office with The Imprint for a three-hour conversation about her career and her vision for reforming the criminal justice system. With surprising candor and emotion, the DA also described how she arrived at a hostile office, managed opposition to the changes she sought, and what drives her life’s work.
“We are training attorneys not on numbers, not on trying to win at all costs,” Becton said. “We’re training them to do the right thing in every situation, and to individualize that case.”
Progressive DAs Under Fire
Becton is among a small group of increasingly visible prosecutors pushing for progressive change in a country with the dubious distinction as the world leader in mass incarceration.
She considers her juvenile reforms — including a restorative justice diversion program — among her highest accomplishments in office.
Like a handful of other DAs nationwide working to dial back decades of tough-on-crime approaches, she has faced obstacles within her own ranks.
Now there are new pressures. While the worldwide protest movement against racial injustice sparked by George Floyd’s murder lent some public support for reforms, an uptick in violent crime during the pandemic has prompted blowback.
After a steady decline, the last two years have seen an increase in homicides, aggravated assaults and gun crimes across the country, according to a report by the Council on Criminal Justice. Between 2019 and 2020, the murder rate rose by 29 percent nationwide, marking the largest recorded jump in a one-year period since the FBI began releasing annual figures in the 1960s.
Researchers caution against drawing conclusions from short-term figures, relying on police department data and taking the numbers out of a larger context. And it’s too soon to be certain why some violent crime has increased, experts say.
So far, criminologists point to psychological and financial stresses of the pandemic, increased gun sales and an increasingly troubled relationship between the public and police.
Becton has tried to stay firm on her department’s goals. And in her county, according to a January analysis by the Public Policy Institute of California, crime does not appear to have followed the statewide trend. Unlike other large counties in the state, violent and property crimes were down in 2020 in Contra Costa County.
In an attempt to curb racial bias, Becton has partnered with the nonprofit Vera Institute of Justice to evaluate her office’s decision-making. She’s moved away from charging people for low-level, non-violent offenses; established the first Human Trafficking Unit to combat exploitation of sex or labor, and the first standalone Conviction Integrity Unit to investigate wrongful claims.
She has also processed a backlog of untested sexual assault kits and dismissed thousands of old marijuana convictions.
And when it comes to a new approach to youth crimes in Contra Costa County, “we do not file low-level offenses, period,” said Andrea Tavenier, deputy district attorney and supervisor of the juvenile division.
But amid these reforms, Becton has faced resistance from some in her office, which has a history in stark contrast to the present. In 2014, two years after Trayvon Martin’s killing and one year after the launch of the Black Lives Matter movement, her predecessor Mark Peterson was accused by two county public defenders of racially biased charging practices.
In his scathing response, the former Contra Costa County DA repeated “all lives matter” five times.
Last May, in an ongoing legal challenge to Becton’s authority first filed in 2020, five white female prosecutors — Mary Knox, Alison Chandler, Mary Blumberg, Rachel Piersig and Jill Henderson — filed a federal lawsuit against Contra Costa County and its DA’s office. They allege that since Becton became DA in 2017, “hard-fought gains which had been made by female prosecutors for representation in management have been obliterated.”
Knox, one of the women suing Becton, is also her challenger in this year’s election.
She did not return calls to The Imprint, but her campaign pledges include protecting victims’ rights, enforcing the law and holding offenders accountable.
But in a recent podcast interview with a pair of east county campaign supporters, Knox described her opposition to new state laws and court rulings that provide greater leniency for juvenile offenders, including her concerns that California now offers a chance to teens sentenced to life without parole.
Responding to questions about morale and changes under Becton, she said “the citizens of Contra Costa County are just fed up with the lack of accountability and the lack of prosecution.”
Now, with a more diverse office that has enacted policies that roll back punitive practices, Knox said, the office feels less unified.
“The DA’s office used to be really a family, and we had BBQs and baseball games,” she said on the “WTF California” podcast.
Becton denies the allegations in the lawsuit that she passed over the women for promotions because of their gender. She described sitting at her management table as a privilege, not a right, and — as an elected official — something that she has the power over.
Statistics on her roughly 100-attorney staff shared with The Imprint show that in 2017, 43 percent were women. Today they comprise 55 percent, including three of Becton’s five top deputy DAs. She hired the first woman, and the first person of color in the office’s history to serve as chief of staff.
The office was 82 percent white when she took over. It is now 77 percent white.
When it comes to her management team, Becton said she’s seeking diversity of thought, race, ethnicity, and gender; professionals who have experience and the respect of peers — but also the respect of people in the communities they serve. That’s too limited a group if she’s confined to the mostly white pool of candidates who came up the office ranks, she added.
She also no longer wants to measure a successful prosecutor by conviction rates.
Becton is now seeking re-election to a second full term.
‘This is a New Day’
“It’s important that people understand that this is a new day, I’m taking the office in a new direction,” she said.
“And if you are a person who is trying to fight against the vision that I’m trying to create for this community, in terms of what community safety looks like, then no, you’re not the person that should be serving on my management team. Because you’re responsible for carrying out the new policies and direction that I’m putting in place.”
Becton also countered detractors who claim there’s a connection between rising crime and justice reforms. In a country where one in three Black men born in 2001 ends up in state prison and the incarcerated population has exploded 500 percent in the last 40 years, she sees an urgent need for change.
“We can’t afford to go back to the ‘tough on crime’ policies of the last 40 to 50 years. They did not make us safer,” Becton said. “They made us the most incarcerated country in the world.
“They created huge disparities in terms of race and equity, not to mention the generational trauma that those policies cause that we seldom talk about, but what I think is such an important conversation.”
As the first woman and the first African American to lead the office since it was established in 1850, Becton is an unexpected gatekeeper. The power she wields is rare and the need to create change is not just political, it’s personal.
Her lived experience as a Black woman, a mother and a product of the civil rights movement informs how she shows up in her role.
“I was born and raised in a community where I never met a lawyer in my entire life until I was somewhere in adulthood,” she said of her East Oakland childhood.
Her mother was a self-employed beautician and her father was an airplane mechanic. She came of age in the 1950s and 1960s, moved by the Black community’s fight for basic human rights and equality. She witnessed the civil rights movement unfold.
In 1960, she experienced perhaps her most formative memory: watching on television as 6-year-old Ruby Bridges of New Orleans, Louisiana, flanked by white U.S. Marshals, marched past a threatening mob to class and made history, becoming the first child to integrate an all-white public elementary school in the South.
Death threats and insults were hurled at her, but she persisted, Becton recalls thinking.
“She was this little tiny girl, but she had this sense of courage about her. That image lives in me,” Becton said.
Then, in 1963, a young Becton watched as police in Birmingham, Alabama used high-powered water hoses and dogs to attack Black people fighting for equal rights. In 1968, she stood on the steps at the Alameda County Courthouse in Oakland during a Black Panther rally.
“All of those experiences are a significant part that make up who I am today,” Becton said.
Becton received a degree from the Golden Gate University School of Law in 1986, and a master’s degree in theological studies at the Pacific School of Religion in 2015.
Prior to becoming DA, she served for 22 years as a Contra Costa County Superior Court judge, including an elected term as presiding judge, overseeing a $45 million budget. She was president of the National Association of Women Judges and last year was considered a top candidate for state Attorney General, endorsed by the California Legislative Black Caucus.
Becton was appointed interim DA in September 2017, when her predecessor was found to have broken the law. Peterson resigned after pleading no contest to 13 felonies for allegedly lying on his campaign disclosure forms and using more than $66,000 in campaign contributions for personal use, according to the state’s fair Political Practices Commission.
In the 2018 election, Becton ran on a platform that promised to bring integrity, fairness and a new approach to criminal justice.
She has followed through on an early pledge to release a public accounting for all officer-involved fatal incidents if charges aren’t filed.
In April 2021, for the first time in the county’s history, she charged a law enforcement officer for an on-duty killing. Becton’s office filed felony charges against Andrew Hall, a white Danville police officer and sheriff’s deputy, for the on-duty killing of Laudemer Arboleda. The 33-year-old Filipino man with mental illness was driving 6 mph after a failed traffic stop when Hall fired 10 bullets at him.
Hall went back to work, and later fatally shot a homeless man who was holding a knife, a case still under investigation.
Becton’s rare decision to prosecute a cop in Contra Costa County, particularly given the time it took, raised additional controversy inside and outside of her office. Two DAs resigned from the team that investigates officer-involved shootings in protest.
Reaching her decision was no small feat. Becton told The Imprint that before she could file charges that would hold up in court, she needed to restructure her office to have a team, rather than an individual, investigate police shootings, changing the way it had been done in the past. She also said she had to have the case reinvestigated.
In October, a jury convicted Hall of assault with a firearm, deadlocking on a charge of voluntary manslaughter. He now faces up to 17 years in prison.
Calls for a Rollback
Critics of criminal justice reforms nationwide have argued that progressive prosecutors and more lenient policies are to blame for the rising crime of late.
Following a spate of shootings in New York in recent months, the State Association of Chiefs of Police rallied in Albany, proposing amendments to roll back justice reforms.
Across the bay, Becton’s counterpart in San Francisco, Chesa Boudin, faces a recall vote in June. The DA’s progressive policies on bail reform and creating an innocence unit prompted attacks amid a rash of violence against Asian Americans, car break-ins and property damage and theft at department stores.
Forty attorneys have resigned from Boudin’s office since he arrived in 2020, National Public Radio reported late last year, one third of his office.
Former beat cop George Gascón became DA in Los Angeles County in December of 2020, announcing new policies just days into taking office. He sought to prohibit prosecution of minors in adult court, halt truancy charges and bar attorneys from using prior juvenile cases as a “strike” later in life.
Along with other new sentencing guidelines for adults, Gascón’s reforms prompted immediate pushback from law enforcement officers, elected officials and his own prosecutors, who quickly filed several lawsuits to stop the new rules from taking effect.
A petition to recall Gascón is now circulating. (Recently, under pressure from critics, Gascón has created policy exceptions “in the most extraordinary of cases,” rolling back earlier pledges that children would not be prosecuted in adult court and his office would not seek life without parole sentences.)
Prosecutors Alliance or ‘Rogue DAs’?
Becton, Boudin, Gascón and San Joaquin County District Attorney Tori Verber Salazar have formed the Prosecutors Alliance of California, which has also become the subject of some scorn. In a December op-ed in the Fresno Bee, retired Madera County Superior Court Judge David Minier, a former district attorney, called the alliance “a pretentious title for a ‘progressive’ group of four.”
Minier said they are “rogue district attorneys, or ‘un-D.A.s,’ who coddle the offender and ignore the victim.”
One expert on the challenges faced by progressive prosecutors nationwide said it’s not uncommon for a reform agenda to face such pushback.
“Change and growth doesn’t happen without disrupting the status quo,” said Miriam Krinsky, executive director of the national nonprofit Fair and Just Prosecution.
“There is only one elected prosecutor in an office and it is their responsibility — and theirs alone — to set policy and ensure that those policies are implemented.
Krinsky added that “not everyone will embrace new thinking and some will undoubtedly cling to the past,” but it’s important to note the national support for a new approach as well.
“Unfortunately it’s often the voices of the opposition that are the loudest.”
Becton never expected the journey would be easy.
When she arrived five years ago with talks about jail alternatives and reducing mass incarceration, she said, “Everybody was like, ‘How are we going to get her out of here?’” What’s more, Becton added:
“Some of the people that were so opposed to the changes that I’m trying to make are still here.”
Noting “remnants of the old approach that linger” in the Contra Costa County DA’s office, Cassidy Higgins, vice president of community impact at the nonprofit Fresh Lifeline for Youth, said Becton “has not had the easiest road” since her election.
But she described her as a prosecutor with “visionary ideas.” “She is persistent and does not appear to let these bumps prevent her from pursuing the pathway that achieves public safety for everyone,” Higgins said, “which has to address the root causes of crime and the needs that underlie the behaviors.”
Becton has particularly impressed professionals working to turn around the youth crime trajectory. Even the local public defender had good things to say about her counterpart on the other side of the courtroom.
“We have seen significantly fewer offenses filed in juvenile court in Contra Costa over the last few years. This reduction corresponds with a nationwide decrease in juvenile filings, and also reflects the impact of local charging practices,” the county’s Public Defender Ellen McDonnell said in an email to The Imprint.
“Our local District Attorney’s office is now filing fewer misdemeanor charges against youth and we are pleased to see the system pivot towards alternative approaches in certain cases.”
McDonnell said she appreciates that the DA’s office has invested in diversion and in restorative justice options for youth, and hopes to see the approach “significantly” expanded — citing evidence that even in more serious cases, it “helps to prevent future criminal legal system involvement for youth.”
Research on adolescent brain development has better defined the connection between criminal acts and the inability to control impulses and consider consequences. Meanwhile, incarceration has not proven to be a crime deterrent, but too often achieved the opposite — accelerating criminality and recidivism among youthful offenders.
Meanwhile, youth crime and detention has been on a steady decline for decades. Like facilities up and down the state, Contra Costa County’s hulking 290-bed John A. Davis Juvenile Hall — a maximum-security detention facility for juvenile offenders— sits mostly empty. On a recent day it housed 35 youth.
Children of color are far more likely than their peers to get arrested at school, be charged with crimes for adolescent misconduct and be prosecuted as adults. Even with fewer youth being locked up, racial disparities are as stark as ever.
Becton’s county reveals the nationwide trend: Only 9 percent of Contra Costa County’s child population is Black, but Black youth make up 55 percent of those in detention. In contrast, white children are 35 percent of the population, but just 9 percent of those incarcerated.
The annual cost to detain each youth in Contra Costa County, a financial burden that falls on taxpayers, is nearly $550,000, according to local officials.
In a 2020 press release, Becton announced she would give the Board of Supervisors the Reimagine Youth Justice task force recommendations “on the most effective ways to invest in our justice-involved youth through restorative, community-based solutions, with an initial focus on developing an effective process for closing Juvenile Hall.”
Although initially, she sought to have a plan for local officials to consider at the start of 2021. She now says she needs another year to complete it.
Members of the task force include system-involved young people, parents, county lawyers, victim advocates and specialists in mental health and education, and Becton wants their decisions to be driven by more than cost-savings. “
We need to be thinking about what’s best for our kids and exploring what’s available,” she said. Many of the kids in detention don’t need to be locked up, Becton added, but the county doesn’t yet have alternatives.
“You got this big facility, you know that’s not what you need, but you still need a secure facility for youth who are not yet safe to be in our communities.”
Three-Year Pilot Program
Meanwhile, her office is using a $1 million state corrections grant for a three-year pilot program to explore alternative routes for youth found breaking the law. The DA’s office partnered with RYSE Youth Center of Richmond and the Oakland nonprofit Impact Justice to launch R.E.S.T.O.R., the county’s first juvenile diversion program.
Youth 12 to 17 who’ve been arrested but not charged with a crime can be referred to the program by the DA’s office. Cases must meet certain criteria: The offense must include an identifiable victim who did not sustain a serious physical injury. Those who’ve committed serious offenses such as murder, rape, robbery, and carjacking with a weapon are not accepted.
Deputy DA Tavenier said she’s referred young people who’ve been arrested for grand theft auto, attempted robbery, “fairly serious” battery and assault and burglaries. Examples of those diverted include a teenager who assaulted his mom during an argument, and a group of teenagers who attacked a mall security guard they said had racially profiled them.
All affected parties must voluntarily attend, and be willing to discuss what happened in a restorative circle.
The “responsible youth” meets multiple times over several months with the “harmed person,” caregivers and support people. They write a letter of accountability, and listen as all parties describe what happened and the impact it had on them. Collaboratively, they reach an agreement about the path forward, and specialists with the program ensure the plan is completed.
The R.E.S.T.O.R. program cites dramatic savings in public funds when incarceration is avoided, lowered recidivism rates and high satisfaction among crime survivors. It began accepting participants in March 2020 from parts of the county where racial disproportionality is highest — the cities of Richmond, Pittsburgh and Antioch. So far, the restorative justice circles have been held virtually due to the pandemic, but that has made participation easier, cutting down on travel times and connecting people located in far reaches of this sprawling county.
Forty-five young people are now participating.
Circle facilitators dig deep into the young person’s state of being by learning about their physical and mental health, their school experience, home life and more. “When you get down to the root of the problem it’s rarely self-centered, these kids aren’t trying to get material things,” said Stephanie Medley, director of education and justice at RYSE.
“We’ve found that a lot of our families need food, and learn that the young person was trying to get money because they feel like they don’t have something.”
The key is getting young people before they formally enter the criminal justice system, offering them services, and amplifying victims’ voices. Most times, the person harmed just wants the young person to understand the impact of their actions, and that they caused pain, Medley said.
The plan for the “responsible person” — who are not labeled convict or criminal or offender — ranges, depending on the victim’s requests. The teen might be asked to volunteer with a community group, perform yard work or produce an improved school report card. Medley said she anticipates almost doubling the program by June, achieving close to 100 youth participants.
Antioch City Council Member Tamisha Torres-Walker, who runs the Richmond-based Safe Return Project which aims to “secure the freedom and liberation of formerly incarcerated individuals,” applauded the program.
But she said its limitations give her pause. Torres-Walker, who was previously incarcerated, said the diversion program “has fast-tracked decarceration of young people in the county.”
But she said she’s concerned about “the system” choosing who gets the chance to avoid being criminally charged. Youth who advocates and community members see as good candidates might be excluded from the benefits of restorative justice, Torres-Walker said.
“It’s the institution that is making the recommendations,” she added. “We’ve got to be careful about that.”
Deputy DA Tavenier said she is working to ensure that the kids who go through the program are successful.
“First, because they will have earned a sealing of their juvenile record and a fresh start, and second, because as the number of successes grow, we will have demonstrated that it works at least as well, if not better, than the justice system for those youth who complete it,” she said.
“In my view, a strong foundation will allow for a much larger house.”
Deputy DA Tavenier said she’s is aiming for sustainable reform, which has to be intentional, reasoned, and a measured change.
“We often talk about this really as the social justice and civil rights movement of this century, of our lifetime,” Becton told The Imprint, her voice shaking as she described the breadth of her work.
“For those of us who get to sit in this seat, we have a charge and it’s a huge responsibility to talk about what community safety looks like: People, no matter where you are or who you talk to, people want to live in a safe community. They want to have housing, they want to have adequate schools. They want to have food and clean water and parks and open space.”
Progress throughout her five-year term has been hard won. As she proceeds, she hopes to cement the kind of change that cannot be easily undone by a successor with a different approach.
“I probably can’t do every single thing on day one, but I can keep moving, and get us to where hopefully, by the time I walk out of this door, the changes that I am implementing become the norm and not the exception,” Becton said.
“I want people to say, this is what we do now.”
This article is published in partnership with The Imprint, a national nonprofit news outlet covering child welfare and youth justice. Jeremy Loudenback contributed to this report. Sylvia A. Harvey reports at the intersection of race, class, and policy. Harvey’s work has appeared in VOX, ELLE, POLITICO, The Nation, The Appeal, The Marshall Project, The Imprint and Colorlines, among others. She is the author of The Shadow System: Mass Incarceration and the American Family.
With most state legislatures now in session, the past week saw a glut of cannabis and drug reform bills get introduced and even make advancements to the next chamber. Here are some of the major bills in Florida and Delaware.
In Florida this week, at least three new proposals to legalize the adult use of cannabis were introduced by lawmakers on both sides of the aisle.
H.B. 467, sponsored by Rep. Yvonne Hinson, D-Gainesville, would vest regulatory oversight with a new Division of Cannabis Management under the state's Department Agriculture and Consumer Services. The bill would give localities power to approve or disallow licensed businesses from operating.
H.B. 549 and H.B. 551, sponsored by Rep. Anika Tene Omphroy, D-Fort Lauderdale, would regulate and tax recreational cannabis, respectively. The former would rename the Division of Alcoholic Beverages and Tobacco, which is under the state's Department of Business and Professional Regulation, and give it authority over the new recreational marijuana market.
The latter would establish a tax schedule based on THC potency. Cannabis flower with 35% or less THC content would be taxed at 10%, more psychoactive flower would be taxed at 25%, and cannabis-infused products would be taxed at 20%. The bill also taxes cultivators at 7% of their gross receipts.
Companion Senate bills, S.B. 1884 and S.B. 1886, sponsored by Sen. Bobby Powell, D-West Palm Beach, were also introduced this week and have the same proposals as Omphroy's House bills.
S.B. 776 and H.B. 1461, sponsored by Sen. Jeff Brandes, R-Seminole, and Rep. Carlos G. Smith, D-Alfaya, respectively, would amend the Sunshine State's existing medical marijuana statute to allow nonpatients 21 and older to buy cannabis products from medical dispensaries, while also tightening up regulations on those same dispensaries.
The bills would cap personal possession at 2,000 mg of THC, or four ounces of flower. And while landlords are allowed to maintain policies preventing adults from vaping or smoking, they "may not prevent his or her tenants from possessing or using marijuana by other means," the bill said.
The bill also includes components requiring sentencing review for those serving time for possessing fewer than four ounces of cannabis and allow people to petition the courts for the expungement of marijuana-related convictions. The bills also empower local municipalities to levy their own taxes on marijuana dispensaries.
These bills, most of which were pre-filed last year, join multiple other bills already pending in Florida to legalize adult-use marijuana sales.
Meanwhile, Delaware lawmakers on Wednesday introduced a new bill to tax and regulate the sale of recreational marijuana. H.B. 305, or the Delaware Marijuana Control Act, would allow adults over 21 to possess up to one ounce of marijuana, but it would not allow home cultivation.
The bill would impose a 15% tax on cannabis sales. Seven percent of the proceeds would be directed toward a Justice Reinvestment Fund, which would be given to the state's Department of Justice to fund grants and administer programs geared toward restorative justice, reducing the prison population and assisting with the expungement of criminal records, among other efforts.
Primary oversight of the new adult-use market would be vested in a new marijuana commissioner, who would establish regulations. An oversight committee would also be created to advise on policy and review the efficacy of the act's implementation.
The bill would create a social equity license and micro-business license tier, in addition to a standard "open" license. An open license would have a standard biennial fee of $10,000, compared to $1,000 for social equity licensees and $3,000 for micro-business licensees. License applicants would also have to attest to having a labor agreement or promise to put one in place.
Social equity applicants are defined in the bill as people who have lived in a disproportionately impacted area for five of the last 10 years, or anyone who has had a marijuana-related offense other than selling to a minor. The bill also directs the commissioner to create programs for financial and technical assistance for social equity applicants.
On Monday some tribal offices and federal government offices are closed to commemorate Presidents' Day.
American Indians have a different worldview than do non-Indians of the federal government including American presidents. That is not to say, American Indians are anti-American or even anti-government. This is evidenced by the large percentage of American Indians who serve in the United States military.
However, given what American Indians have had to endure in the United States, understandably American Indians view history through a different lens. This is true of even how the men who have been president of the United States are viewed by Native people.
The following quotes about American Indians are from various presidents since President George Washington and up to President Joe Biden. The quotes here do not include all presidents. However, there are quotes from every president since President Franklin Roosevelt.
The reader will get a sense of how the hostility towards American Indians has lessened during the past two hundred plus years. Just as federal policies toward American Indians have altered, so too have attitudes by presidents. Of course, United States presidents set forth policy.
"Indians and wolves are both beasts of prey, tho' they differ in shape."
"If ever we are constrained to lift the hatchet against any tribe, we will never lay it down till that tribe is exterminated, or driven beyond the Mississippi… in war, they will kill some of us; we shall destroy them all."
"My original convictions upon this subject have been confirmed by the course of events for several years, and experience is every day adding to their strength. That those tribes cannot exist surrounded by our settlements and in continual contact with our citizens is certain. They have neither the intelligence, the industry, the moral habits, nor the desire of improvement which are essential to any favorable change in their condition. Established in the midst of another and a superior race, and without appreciating the causes of their inferiority or seeking to control them, they must necessarily yield to the force of circumstances and ere long disappear."
"Ordered that of the Indians and Half-breeds sentenced to be hanged by the military commission, composed of Colonel Crooks, Lt. Colonel Marshall, Captain Grant, Captain Bailey, and Lieutenant Olin, and lately sitting in Minnesota, you cause to be executed on Friday the nineteenth day of December, instant, the following names, to wit… " - Text from order made by President Lincoln to General Sibley ordering the execution of American Indians in Minnesota.
"I don't go so far as to think that the only good Indians are dead Indians, but I believe nine out of ten are, and I shouldn't like to inquire too closely into the case of the tenth."
"All of our people all over the country - except the pure blooded Indians - are immigrants or descendants of immigrants, including even those who came over here on the Mayflower."
"The United States, which would live on Christian principles with all of the peoples of the world, cannot omit a fair deal for its own Indian citizens."
"There has been a vigorous acceleration of health, resource and education programs designed to advance the role of the American Indian in our society. Last Fall, for example, 91 percent of the Indian children between the ages of 6 and 18 on reservations were enrolled in school. This is a rise of 12 percent since 1953."
"For a subject worked and reworked so often in novels, motion pictures, and television, American Indians remain probably the least understood and most misunderstood Americans of us all."
"The American Indian, once proud and free, is torn now between White and tribal values; between the politics and language of the White man and his own historic culture. His problems, sharpened by years of defeat and exploitation, neglect and inadequate effort, will take many years to overcome."
"What we have done with the American Indian is its way as bad as what we imposed on the Negroes. We took a proud and independent race and virtually destroyed them. We have to find ways to bring them back into decent lives in this country."
"I am committed to furthering the self-determination of Indian communities but without terminating the special relationship between the Federal Government and the Indian people. I am strongly opposed to termination. Self-determination means that you can decide the nature of your tribe's relationship with the Federal Government within the framework of the Self-Determination Act, which I signed in January of 1975."
"It is the fundamental right of every American, as guaranteed by the first amendment of the Constitution, to worship as he or she pleases… This legislation sets forth the policy of the United States to protect and preserve the inherent right of American Indian, Eskimo, Aleut, and Native Hawaiian people to believe, express, and exercise their traditional religions,"
as he signed into law the American Indian Religious Freedom Act.
"Let me tell you just a little something about the American Indian in our land. We have provided millions of acres of land for what are called preservations - or reservations, I should say. They, from the beginning, announced that they wanted to maintain their way of life, as they had always lived there in the desert and the plains and so forth. And we set up these reservations so they could, and have a Bureau of Indian Affairs to help take care of them. At the same time, we provide education for them - schools on the reservations. And they're free also to leave the reservations and be American citizens among the rest of us, and many do. Some still prefer, however, that way - that early way of life. And we've done everything we can to meet their demands as to how they want to live. Maybe we made a mistake. Maybe we should not have humored them in that wanting to stay in that kind of primitive lifestyle. Maybe we should have said, no, come join us; be citizens along with the rest of us."
"This government-to-government relationship is the result of sovereign and independent tribal governments being incorporated into the fabric of our Nation, of Indian tribes becoming what our courts have come to refer to as quasi-sovereign domestic dependent nations. Over the years the relationship has flourished, grown, and evolved into a vibrant partnership in which over 500 tribal governments stand shoulder to shoulder with the other governmental units that form our Republic."
George Herbert Walker Bush
"Let us rededicate ourselves to the principle that all Americans have the tools to make the most of their God-given potential. For Indian tribes and tribal members, this means that the authority of tribal governments must be accorded the respect and support to which they are entitled under the law. It means that American Indian children and youth must be provided a solid education and the opportunity to go on to college. It means that more must be done to stimulate tribal economies, create jobs, and increase economic opportunities."
"Tribal sovereignty means that. It's sovereign. You're a… you're a… you've been given sovereignty and you're viewed as a sovereign entity."
George W. Bush
"We also recommit to supporting tribal self-determination, security, and prosperity for all Native Americans. While we cannot erase the scourges or broken promises of our past, we will move ahead together in writing a new, brighter chapter in our joint history."
"You were here long before any of us were here. Although we have a representative in Congress who they say was here a long time ago. They call her 'Pocahontas.'
During a ceremony to honor three World War II Navajo Code Talkers, Trump, as he was supposed to be honoring them, makes a racist joke.
“The federal government has long broken promises to Native American tribes who have been on this land since time immemorial. With her appointment, Congresswoman Haaland will help me strengthen the nation-to-nation relationship.”
Eddie Gibbs, a former prisoner in the notoriously violent Rikers Island jail complex who was moved between several prisons outside New York City over roughly three years after pleading guilty to manslaughter for killing a man in self-defense, may be the first person elected to the New York State Legislature who previously served time in prison, reports Reuters. Soon after his release, Gibbs took comedy classes and performed stand-up under the name Good Buddy, hoping to offset the notion that people should be afraid of someone convicted of a violent felony. He ended up working as a driver for about a decade for the celebrity criminal defense attorney Murray Richman, who encouraged him to enter politics. Gibbs said his past shapes his legislative priorities, including improving the lot of his district’s disproportionately high number of public-housing tenants and making it easier for people released from prison to reenter society. One of his first priorities is passing legislation to remove some of the obstacles young people leaving prison can face securing state identification. The New York Legislature does not have records to confirm that Gibbs is the first elected representative there to have been previously incarcerated.
(February 11, 2022, 6:33 PM EST) -- The federal government told a D.C. federal court it has reached a tentative agreement to end advocacy groups' lawsuit over the diversion of federal funds for the southern border wall and is nearing an agreement with environmental groups and tribes bringing similar claims.
In separate status reports Thursday, the federal government and the plaintiffs that brought three distinct lawsuits updated the court that they have reached, or foresee reaching soon, settlements to end the litigation.
The government is close to wrapping up its settlement talks with one group of plaintiffs made up of the Center for Biological Diversity, Defenders of Wildlife, and Animal Legal Defense Fund, and the parties are "optimistic" that an agreement can be reached, according to the status report in that suit.
The litigation brought by four bands of the Kumeyaay Nation and several affiliates is in a similar spot, according to the status report filed by the parties. They told the court "discussions at this time are focused on a small number of remaining issues that the parties are working in good faith to resolve amicably."
And as for the other coalition of advocacy groups, which includes the Rio Grande International Study Center, Labor Council for Latin American Advancement and California Wilderness Coalition, they "have reached an agreement in principle" to settle their case, the court was told Thursday.
All the parties asked the court to set a March 25 deadline by which they will either move to dismiss the suit or submit filings to advance the litigation, which will either be supplemental briefs in support of their pending cross-motions for summary judgment or an amended complaint.
The environmental and advocacy groups' launched their suits after then-President Trump made an emergency declaration in February 2019 and subsequently redirected $6.7 billion in Department of Defense and Treasury funds for border wall construction. The groups said through that move, Trump misused his emergency authority to get around the congressional appropriations process.
The tribes sued to stop construction of the barrier through their ancestral lands in Southern California months later, alleging violations of the Religious Freedom Restoration Act, the Illegal Immigration Reform and Immigrant Responsibility Act, and other laws in a September 2020 complaint.
The advocacy groups' suits have been paused since Feb. 2021 in light of one of President Biden's first executive actions being to pause construction and redirect the funding his predecessor had funneled into building the wall. The White House's budget request for fiscal year 2022 similarly excluded funding for the project.
The tribes had appealed the lower court's order that denied their bid to block construction until the government engaged with them. But in April, the tribes voluntarily dropped the appeal, saying they have reached an agreement with the U.S. Department of Homeland Security.
The environmental groups are represented by Brian Segee of the Center for Biological Diversity. The other advocacy groups are represented by Sarah H. Burt of Earthjustice.
The tribes are represented by Frank S. Holleman and Colin Cloud Hampson of Sonosky Chambers Sachse Endreson & Perry LLP, Whitney A. Leonard of Sonosky Chambers Sachse Miller & Monkman LLP and Mark Radoff of the Sycuan Tribal Government Legal Department.
The federal government is represented in the three suits by Andrew I. Warden and Michael J. Gerardi of the U.S. Department of Justice's Civil Division.
The cases are Center for Biological Diversity et al. v. Trump et al., case number 1:19-cv-00408, Rio Grande International Study Center (RGISC) et al. v. Trump et al., case number 1:19-cv-00720, and Manzanita Band of the Kumeyaay Nation et al. v. Chad Wolf et al., case number 1:20-cv-02712, all in the U.S. District Court for the District of Columbia.
JACKSON, Miss. (AP) — Mississippi is legalizing medical marijuana for people with debilitating conditions such as cancer, AIDS and sickle cell disease.
Republican Gov. Tate Reeves signed the legislation Wednesday and it became law immediately. It could be months before the first marijuana dispensaries open.
“There is no doubt that there are individuals in our state who could do significantly better if they had access to medically prescribed doses of cannabis,” Reeves wrote in a statement posted to Twitter. “There are also those who really want a recreational marijuana program that could lead to more people smoking and less people working, with all the societal and family ills that that brings.”
The National Conference of State Legislatures says 36 states and four territories already allowed the medical use of cannabis. Mississippi becomes the 37th state.
“For all the people who are touched in some way by a loved one or someone they know who benefits from medical cannabis, this brings their quality of life back,” said Ken Newburger, executive director the Mississippi Medical Marijuana Association, a group that pushed for legalization.
A majority of Mississippi voters approved a medical marijuana initiative in November 2020, and it would have allowed people to buy up to 5 ounces a month. The state Supreme Court invalidated it six months later by ruling that the state’s initiative process was outdated and the measure was not put properly on the ballot.
The state House and Senate, both controlled by Republicans, passed the final version of Senate Bill 2095 last week.
The new law will allow patients to buy up to to 3.5 grams of cannabis per day, up to six days a week. That is about 3 ounces per month. It sets taxes on production and sale of cannabis, and it specifies that plants must be grown indoors under controlled conditions.
Reeves said because of the reduction from 5 ounces a month in the initiative to 3 ounces a month in the new law, “there will be hundreds of millions of fewer joints on the streets because of this improvement.”
The new law prohibits the state from providing economic development incentives for the cannabis industry. The state often provides tax breaks and financial assistance for roads or water access to industrial sites.
The law gives cities and counties 90 days to opt out of allowing medical marijuana facilities, for growing or selling. But, people in those communities could petition for an election to overrule local officials’ decisions and allow them.
Clint Patterson is chief executive officer of Mockingbird Cannabis, which plans to operate in the state. He said cannabis products can alleviate pain and suffering.
“We look forward to serving the citizens of Mississippi as they seek to improve their health and quality of life through responsible cannabis use,” Patterson said in a statement.
On Monday, two people were arrested during Governor Kevin Stitt’s fourth annual State of State Address inside the House chamber at the Oklahoma State Capitol and banners were unfurled on the oil derrick outside the state capitol building in Oklahoma City, while in Tulsa an officer was injured and two protesters were arrested at a demonstration of support for the release of Leonard Peltier.
According to the Indigenous Environmental Network, Indigenous women and their allies carried banners with messages about climate change, the state’s response to the COVID-19 pandemic, and uplifting tribal sovereignty, to the annual address. According to local law enforcement, they were arrested for “disturbing legislative proceedings.”
The names of the two women who were arrested were quickly released to the local news as Cheyenne Morgan, United Keetoowah Nation and Oglala Lakota, and Kelsey Cooper, Cherokee Nation and descendant of Choctaw Nation of Oklahoma. They were a part of an organized protest at the annual governor’s speech that also begins the state’s legislative session. Cooper was booked into the Oklahoma County Detention Center, but does not have a court filing in Oklahoma County, said the clerk’s office to Native News Online.
“Inside the Capitol, two Indigenous women from the Cherokee Nation--United Keetoowah Band and Oglala Lakota Nations disrupted Stitt’s speech by unfurling a giant red banner depicting Governor Stitt’s image with a covid mask and the words ‘land back’ etched into it behind the Speaker’s podium,” wrote the Indigenous Environmental Network in a press release. “From Black Wall Street to McGirt we will not let Oklahoma’s anti-Indigenous, anti-Black elected officials continue to get away with murder or violence against our communities and lands.”
Earlier in the day, it was reported that several banners had to be removed by the Oklahoma City Fire Department that were hanging outside of the state capitol building. The banners were hung on an oil derrick and read “Free Julius Jones,” “Stitt’s Failed State,” and “Oklahoma: We Deserve Clean Land, Air, Water. Build Back Fossil Free.”
“Since Stitt has taken office he has done everything he can to attack tribes and tribal sovereignty, wasting taxpayer dollars on frivolous lawsuits while doing it,” said the group of demonstrators in a statement. “Instead of working with tribes, Stitt has spun the narrative that Oklahoma is somehow now more dangerous while ignoring the fact that prior to [McGirt], the state only cleared 36% of reported robberies, murders, rapes, and aggravated assaults.”
The 2020 U.S. Supreme Court McGirt decision ruled that members of American Indian tribes who commit crimes on Indian reservation lands cannot be prosecuted by state or local law enforcement and must, instead, face charges in tribal or federal courts.
Stitt is a first-term Republican and an enrolled citizen of the Cherokee Nation. He used Monday’s address to present his executive budget proposal and renew his criticism of McGirt. “From the beginning, I’ve sounded the alarm on the Supreme Court’s McGirt decision,” Stitt said. “Oklahoma has been robbed of the authority to prosecute crimes.” The governor cited the state’s district attorneys, law enforcement leaders, and municipalities as supporting the returning jurisdiction to the state.
Stitt and Attorney General John O’Connor challenged the McGirt decision to be overturned. On Friday, January 21, 2022, the U.S. Supreme Court announced it will review only one aspect of its decision that changed jurisdiction for much of the eastern part of the state. The Supreme Court rejected the state’s request to consider overturning the entire decision.
Meanwhile in Tulsa, two people were arrested for assault and battery outside the Page Belcher Federal Building, during a protest for Leonard Peltier. Local news reported that an officer was injured and had to be taken to the hospital, after a confrontation that was partially captured by an observer. According to witnesses, the police officer who was injured agitated the peaceful demonstrator.
“He pulls up, parks, and starts agitating,” said Soulowla Williams to News on 6. “And then, he swung first and it’s on hundreds of cameras.”
Because Tulsa is on Indian lands, the Federal Bureau of Investigation (FBI) is leading the investigation into Monday’s incident. Neither organizers of yesterday’s protest in Tulsa nor the FBI have made a statement on the incident.
On Monday, there were at least six organized protests throughout the country advocating for the release of Leonard Peltier. On Friday, January 28, Peltier tested positive for covid-19, alarming many to advocate for his release. Last Friday, Feb. 4, Senator Patrick Leahy used Twitter to urge President Biden to release Leonard Peltier. “I urge Pres. Biden to commute Leonard Peltier's sentence & release him from federal prison. When our criminal justice has been contorted to propagate injustices, the Pres. should use his clemency powers to provide relief. It is the right thing to do.”
The Justice Department has seized around $3.6 billion in cryptocurrency tied to the 2016 hack of a virtual currency exchange, and arrested a New York couple charged with conspiring to launder billions of dollars' worth of the stolen bitcoin.
The seizure — the largest ever for the department — and arrests stem from the 2016 breach of the Bitfinex exchange. At the time of the hack, the stolen funds were worth around $71 million, but the value has since soared to around $4.5 billion, officials said.
On Tuesday morning, federal agents in New York arrested Ilya "Dutch" Lichtenstein and his wife, Heather Morgan, in Manhattan. The couple faces charges of money laundering conspiracy and conspiracy to defraud the United States.
"Today's arrests, and the department's largest financial seizure ever, show that cryptocurrency is not a safe haven for criminals," Deputy Attorney General Lisa Monaco said in a statement.
The case revolves around the 2016 cyber breach of Bitfinex, during which the hacker stole some 120,000 bitcoin and transferred them to a digital wallet —akin to a virtual account — outside the exchange.
Prosecutors say that digital wallet was under Lichtenstein's control. Court papers say he and Morgan then conspired to launder those funds, conducting a series of small, complex transactions across digital platforms to try to hide the money.
But, court papers say, investigators managed to trace the stolen funds through thousands of transactions to over a dozen accounts held in the name of Lichtenstein, Morgan or their businesses. Prosecutors say the couple also set up accounts with fake names to use in their laundering operation.
Court papers say the couple cashed out the stolen bitcoin into U.S. dollars through bitcoin ATMs and the purchase of gold and non-fungible tokens as well as Walmart gift cards.
The Justice Department has recently boosted its efforts to crack down on crypto crimes and created a national cryptocurrency enforcement team last fall to focus on sophisticated cryptocurrency crimes.