Marion Hungerford has a severe form of borderline personality disorder that led to her numerous suicide attempts. As her mental state deteriorated, her husband of 26 years left her. Alone and unable to support herself, she began a relationship with a man whom she helped to commit a string of armed robberies. She never even touched the gun the man used for the robbery. Even though this was her first offense, Hungerford was sentenced to 159 years in federal prison.

Her case tells us everything we need to know about a set of harsh sentencing laws, particularly one known as “924(c),” that prosecutors use to swell prison populations and perpetuate injustice. There are already too many stories like hers, and Attorney General Jeff Sessions’ charging and enforcement policies — which roll back the previous administration’s more enlightened approach — will only worsen the problem and fuel mass incarceration across the nation.

The details of Hungerford’s case do not match her over-a-century sentence. She “took no active part other than driving [the man] to or from the scene of the crime or casing the stores that [he] later robbed,” as one of the judges who reviewed her case explained. Together, they stole fewer than $10,000. No one was injured during the crime. The man turned on Hungerford in exchange for leniency in his sentencing — he got 32 years. At trial, a psychiatrist testified that she had a “very low capacity to assess reality” and “low level of intellectual functioning.”

Revealingly, people who commit much more serious crimes can receive a lighter sentence. As the First Circuit Court of Appeals has explained, “[u]nder federal law, ‘an aircraft hijacker . . . , a terrorist who detonates a bomb in a public place . . . , a racist who attacks a minority with the intent to kill and inflicts permanent or life threatening injuries . . . , a second-degree murderer, [and] a rapist,’ …  would all be subject to less harsh sentences than” Hungerford.  

These harsh sentences for low-level offenses are possible because of a little-known law that must be named and changed so we can build a smarter and more equitable criminal justice system.

The legal code in question, 18 U.S.C. 924(c), functions as an add-on charge that federal prosecutors can use at their discretion to massively increase the sentence for a crime of violence or for a drug crime. If a prosecutor charges a defendant with three counts of a drug crime and the judge sentences them to five years on each count, those three five-year terms would typically be served concurrently, not consecutively. So the actual time served would be five years. But, if the defendant possessed a firearm in the commission of that crime or conspired with someone else who possessed a firearm during those drug crimes, the prosecutor can charge three corresponding counts under 924(c).

Under that law, the total sentence balloons to a whopping 60 years. That’s five years for the first 924(c) conviction and 25 years each for the second and third convictions, all of which have to be served consecutively to the drug sentences and consecutively to each other. These “stacked” 924(c) charges account for how a first-time offender who never touches a gun or drugs and never injures or threatens anyone can get a sentence of over one hundred years in prison — a “forever sentence.”

And prosecutors can bring these charges even if the gun was unloaded or broken. Even worse, because 924(c) carries mandatory minimum sentences, it is prosecutors, not judges, who get to decide whether a defendant receives a forever sentence. If the prosecutor charges a defendant with 924(c) counts and that person is convicted, the judge’s hands are tied. That judge is forced to sentence the defendant to die in prison, even if the judge believes it’s not a fair sentence.

Indeed, the judge in Hungerford’s case wanted to sentence her to seven years, but couldn’t because of the 924(c) convictions. In an exceedingly rare turn of events, Hungerford eventually benefited from prosecutorial discretion after she was victimized by it. When a new prosecutor looked at her case, he recognized the egregious injustice that had been done and consented to an extraordinary settlement to reduce her sentence to the seven years the judge thought was appropriate. Those are the kinds of prosecutors we need more of.

Instead, we have Attorney General Jeff Sessions instructing federal prosecutors to bring the harshest possible cases against defendants and specifically to focus on low-level gun offenders. Importantly, there are ways prosecutors can hold people accountable for possessing a gun during the commission of a crime without triggering these wildly disproportionate sentences in cases where they are not justified.

For example, they can seek an enhanced sentence through the federal sentencing guidelines. Unlike mandatory minimum sentences, under which judges essentially lose their authority, these guidelines are just a starting benchmark for judges and allow them to craft what they believe is a fair sentence given the specific facts in each individual case.  

The Eighth Amendment, which is supposed to protect us against cruel and unusual punishment, should serve as a check when prosecutors forget that their job is to do justice, not needlessly lock people up for decades and decades. Unfortunately, the U.S. Supreme Court has eviscerated the Eighth Amendment. Indeed, the Supreme Court’s current interpretation of this constitutional right prevents lower federal courts from invalidating “grossly disproportionate” sentences like the ones described here.

Put in simple terms, the court is getting it wrong.

Tellingly, every judge on the First Circuit Court of Appeals recently concurred in an order imploring the Supreme Court to reconsider the “nearly three-decades old” decision that required them “to uphold” a 924(c) “greater-than-life sentence.” The precedent, as it stands, requires judges to impose and uphold sentences that they believe are “barbaric.”

Congress could address part of the problem by passing S.1917, the Sentencing Reform and Corrections Act. Among other reforms, this legislation would amend section 924(c) so that prosecutors cannot stack multiple charges in a single case for a first-time offender. These changes in federal law would result in fewer people being subjected to overly harsh mandatory minimums sentences that are unjust and unnecessary for public safety.  

We must fight against extreme mandatory minimum sentences as well as prosecutors who support and use them, including Jeff Sessions. Until prosecutors abandon this tool, Congress changes the law, or the Supreme Court gives us an Eighth Amendment that lives up to its worthy promise, we will only see more “forever sentences” for low-level offenders.

The NFL’s new “anthem policy” requires players to “respect” the flag and the national anthem or stay in the locker room until it is played. The NFL refers to this as a compromise — it was anything but. 

This was a mandate, not a decision arrived at through a collaborative process. Despite claiming that they would consult with the players before making a decision on this issue, the National Football League Players Association said, “The NFL chose to not consult the union in the development of this new ‘policy.’” So the league and owners will decide what shows “respect.”  

Kneeling is out. The Pittsburgh Steelers indicated that raising a fist or linking arms is out. If one team decides a gesture or posture is respectful but another team doesn’t like it, what will happen? One of the NFL officials actually said, “We will know it when we see it.”  

Tell the NFL: Don't Silence Your Players

Players who want to kneel (or raise a fist or link arms or do some other kind of gesture) are told, “If you do that on the field we will take money away from you.” This is simply a variation of an old, familiar theme. Don’t demonstrate in the street because you block my commute home. Don’t demonstrate downtown, I have shopping to do. Don’t demonstrate at a sporting event because you take away from my entertainment. Why can’t you all just shut up and dribble? 

Telling players to stay in the locker room also rings familiar as well — get to the back of the bus. Get to the other water fountain. Do not appear in public in ways that will threaten or displease white people in America. If you want to protest, do it in a way that white folks don’t have to see it or deal with your claimed injustices.  

And with the collusion to keep Colin Kaepernick out of the league combined with teams asking free agents if they will stand during the anthem, another message is being delivered. Be thankful you are making all that money — you play a game for a living. If we didn’t allow you to be making this money, you would be out there with the rest of “them.” 

President Donald Trump weighed in on players staying in the locker room saying, “Maybe you should not be in the country.” In a country that claims to value free speech and expression, you should be fined or forced to leave the country if you “speak” in a way some don’t like. Orwell would have loved it. 

John Elway and other NFL officials have said that we should “take the politics out of football.” Really? What about the millions of dollars paid to the NFL by the Department of Defense to promote the military? If encouraging people not to serve in the military is a political act, then encouraging them to serve is equally political. What about the show of military aircraft flying overhead and flags streaming across the field? Kneeling during the anthem has nothing to do with being for or against military recruiting, but the Pentagon paid for the NFL to promote the military — an overtly political act — and the NFL has been delivering. There is nothing wrong with that, but it is what it is. The NFL gave up being non-political a long time ago. 

The NFL said the new policy would change “a false perception among many that thousands of NFL players were unpatriotic.” Think about that for a minute. There was a false perception that players were unpatriotic, meaning the players kneeling were patriotic. The cure for this false perception is to force players to stand when they would prefer to kneel. By forcing them to stand, the fans will now know they are patriotic. This makes no sense. 

Only one team has said they will stop selling concessions during the anthem. It does not appear that the suspending the selling of beer, hotdogs, banners, and the like was even considered by the group. I guess it is not disrespectful to leave your seat and miss the anthem in order to get a dog and a beer. After all, there is money to be made. And no disrespect is shown by the fans at home who go to the bathroom, grab another beer, or set up the snacks during the anthem. The respect that must be shown must come from the players. 

Houston Texans owner Bob McNair told players last year, “You fellas need to ask your compadres, fellas, stop that other business, let’s go out and do something that really produces positive results, and we’ll help you.” Much has been made of the NFL setting aside money for social justice. The money was not new money to support communities, but re-allocating already designated charitable funds from one issue (breast cancer) to another (social justice). This is what caring means to an institution which was forecast to hit $14 billion in gross revenue last year. 

If people are serious about making a difference, they use whatever platform they have to make that clear. The NFL released its new policy at the same time news was breaking about NBA player Sterling Brown being abused and tased by officers of the Milwaukee Police Department. This is the kind of incident that started the protests. The NFL did not mention this incident in any of its messaging. Apparently speaking out about police abuse in the Black community isn’t something they are interested in during the offseason either. 

The Trump administration is ramping up surveillance of what people say on social media — and it’s doing so largely in secret.

Social media surveillance by the government raises serious concerns about free speech, racial and religious profiling, and privacy. The ACLU today filed a Freedom of Information Act request to find out how agencies like the FBI and the Department of Homeland Security are collecting and analyzing content from Facebook, Twitter, and other social media sites.

Social media platforms are today’s public square, but they’re unlike any other that has ever existed. Never has more of our speech been concentrated in fewer places, where it is often accessible worldwide. In the aggregate, the social media web is an up-to-date archive of our online speech, a map of our contacts and associations, and a nuanced guide to our habits and preferences — all in one. Facebook’s Cambridge Analytica scandal revealed just how sensitive this information can be.

It’s no surprise that federal agencies are salivating over this trove of data, which they insist they need in order to track purported threats. But there’s no evidence that social media surveillance improves our security. Research contradicts the notion that reliable indicators exist to identify would-be terrorists or other security threats. In the absence of such indicators, officials inevitably scrutinize and penalize speech, religious affiliation, or other constitutionally protected conduct.

We’re submitting our FOIA request to seven agencies, including the Department of Justice, U.S. Immigration and Customs Enforcement, and the State Department. The limited information that is publicly available suggests these agencies are rapidly expanding their use of social media surveillance.

DHS uses what it calls a “Shared Social Media Screening Service” to collect, analyze, and disseminate social media content on “Homeland Security Standing Information Needs” — subjects DHS does not disclose but about which it continuously gathers information.

According to recently released documents, ICE plans to spend $100 million on a contract to monitor the social media activity of visitors to the United States.

In March, the State Department announced that it plans to require nearly all of the 14.7 million people who annually apply for work or tourist visas to submit social media identifiers they have used in the past five years.

And the FBI is reportedly establishing a task force to monitor social media, the purpose of which remains unclear.

The public needs to know far more about how agencies are gathering our data, what they’re doing with it, any policies that govern this surveillance, and the tools agencies use, including algorithmic surveillance and machine-learning techniques.

Government surveillance of social media can have serious consequences, whether you’re a U.S. citizen, a lawful resident, or are seeking to immigrate to or visit the United States. The FBI appears to be using social media as a basis for deciding who to interview, investigate, or target with informants or undercover agents. A single Facebook post or tweet may be all it takes to place someone on a watchlist, with effects that can range from repeated, invasive screening at airports to detention and questioning in the United States or abroad. And non-citizens subject to the Trump administration’s “extreme vetting” policies could be denied entry to the United States or face difficulty becoming lawful residents or naturalized citizens.

More broadly, there’s good reason to be alarmed about the chilling effect that social media surveillance will have on speech and expression that the First Amendment protects. Researchers have documented the “spiral of silence” that results from government surveillance. In one major study, even people who said they had nothing to hide were highly likely to self-censor online when they knew the government was watching. That inevitably leads to an impoverished discourse and reluctance to criticize the government.

Discriminatory targeting of racial and religious minority communities is another major concern. Well-documented surveillance of social media associated with Black Lives Matter is a continuation of a decades-long pattern of government monitoring of minority activists and communities. And this administration’s surveillance of immigrants and visitors’ social media is infected with the same anti-Muslim bias that underlies its “extreme vetting” policies.  

Social media surveillance also undermines our privacy. Even when users choose to make social media content public, that doesn’t mean they expect that government agencies will use it to compile digital dossiers that track their speech, networks, and associations — and potentially pass that information to other agencies, with consequences that could be severe.

Our government should be fostering, not undermining, our ability to maintain obscurity in our online personas for multiple reasons, including individual privacy, security, and consumer protection. That means not using powerful tools that can track and collect social media information for government surveillance purposes.  

It’s time for a fuller public conversation about imposing limits on government social media surveillance in order to protect the public square and the liberty that depends on it. To have that conversation, we need to know exactly what the government is doing.