A Declaration for Justice Reform

THE TERRIBLE TEN

of Racial Justice

Below are the TEN laws and processes that primarily propagate mass incarceration and excessive sentences. They lack fairness or equity. Generations of black and brown fathers have been excessively incarcerated for non-violent crimes, which continues to perpetuate the problem to the subsequent generations of fatherless children. The proponents of the war on crime must make a distinction between violent and non-violent crimes. The Conviction Machine needs change.

I. Mandatory Minimums & Enhancements

Mandatory minimums on non-violent drug charges are excessive. Mandatory minimums effectively transfer the power from a fair minded judge to a career minded prosecutor intent on racking up wins. Additionally, enhancements are excessive, allowing prosecutors to create charges with such excessive prison terms that defendants fear the use of their right to trial, creating instead a plea bargain legal system. Furthermore, drug sentencing tables currently provide for 11-14 year sentences for less than one ounce of drugs. Changes are needed.

II. Unreasonably Denying Bail

The Bail Reform Act of 1984 dictates that bail can be denied when no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community. With even the smallest drug cases (less than 1 gram) having a potential sentence of up to 20 years, just about any drug charge becomes potentially un-bailable. Magistrate Judges tend to classify anyone with priors or with a drug charge as a danger to the community. This has created a Pre-Trial Prison Industrial Complex, wasting taxpayer dollars and keeping the accused locked up and suffering under deplorable conditions in county jails until they simply give up from exhaustion. It has become the main means used by prosecutors to get guilty pleas.

III. Unchecked Prosecutorial Misconduct

Prosecutors compete for Wins. The report of their wins and losses is distributed throughout the DOJ. This competition eliminates their desire to seek truth or justice. They will withhold evidence and spin lies in bail hearings, to keep defendants locked up to help pressure pleas out of them. They will coerce cooperating witnesses to lie, in exchange for significant sentence reductions. Prosecutorial Misconduct Laws must be amended to control the truthfulness of prosecutors. Judges must also be more alert to identify misconduct in order to protect the sanctity of the legal process. (See Chapter 2 of Amazon Law Bestseller Busting the Feds at Their Own Dirty Game by Creaghan Harry.)

IV. Rules of Criminal Procedure Lack Equity

ALL discovery should be provided to the defendant expeditiously. A defendant cannot properly assess his case without ALL of the evidence, while the prosecutor retains everything for his advantage. Brady Material, which is evidence that is favorable to the defendant, is not provided until weeks or days before trial. Additionally, while prosecutors have access to interview witnesses, defendants have no access to hold depositions of government witnesses. Lastly, the Grand Jury process has become a rubber stamp for prosecutors. A defendant should have the right to testify in front of the Grand Jury and pre-trial access to the transcript.

V. Public Defenders Need a Code of Ethics and Procedures Manual

Most black and brown defendants do not have the money to hire an attorney and are assigned a Public Defender or a Pool Attorney. Bad public defenders commonly waive their clients' right to a Preliminary Hearing without reviewing the facts of the case, waive their bail hearing, and leave the defendant languishing in a county jail for months or years with excessive plea offers. Many free CJA lawyers take on 10-15 cases at once, leaving them no time to adequately represent each defendant. A Procedures Manual must be created with checklists and requirements to be performed.

VI. Family of Inmate Protection Act of 2023

Mass Incarceration has taken away the family unit from millions of black and brown Americans. While some states (CA, CT, NY, WA) allow extended family visits, the Department of Justice's Bureau of Prisons and most states do not. If a father were able to spend time with his family and his children for a weekend and have a real conversation about his life and his mistakes, he has the chance to positively affect the next generation. A Univ. of California School of Public Affairs study concluded that extended family visits build family ties and reduce recidivism.

VII. The Rules of a Drug Conspiracy Are Too Vague

Police officers and prosecutors now use it to round up anyone in or around a neighborhood who even sold a gram of drugs and charge them all in a single drug conspiracy with a term of 10 years to life, by adding up all the drugs from dozens of people. In other types of cases, the law is so vague that it gets consistently misapplied, for example, to a person who buys from another as what is known as a buyer seller agreement, and the person then gets dumped into a massive conspiracy for virtually any reason. Drug conspiracy statutes must be redefined to allow clear application.

VIII. Drug Purity Needed Within Sentencing

Currently, the weight of the cut used in drugs counts as if it were pure drug. This gives kingpins with pure drugs short sentences while urban street dealers get long sentences: the same amount of pure heroin might mean 3 years, while the street dealer gets 10. In United States v. Chapman, the dissenting Supreme Court justices discuss the absurd results this creates.

IX. (Federal) Career Offender Should Not Include Low-Level Priors

The federal three strikes statute (4B1.1) allows a prosecutor to use a prior street-level drug charge as one of the strikes, creating a sentence of 210-262 months (18-22 years), even when priors are as small as a $5 drug sale. This law must be amended to require priors to be serious drug offenses, as was done in the First Step Act for other statutes, or restrict Career Offender to only crimes of violence.

X. (Federal) 924(c) Statute Must Be Clarified

This law was passed to add sentences for using a gun in a crime of violence, then updated in 1998 to include use of a gun in a controlled substance offense. Federal prosecutors have distorted its use to double-charge gun possession, creating excessive consecutive sentences. As Justice Gorsuch noted in United States v. Davis (2019), most drug sales are non-violent. This law should be limited to crimes of violence, or at minimum clarified to only include active drug trafficking.

In witness whereof, we the people call for change.