Right now, an estimated 80 inmates are serving mandatory life sentences because of a federal "Three Strikes" drug law.
"It's really like hell, like how they describe hell. Nobody can hear you screaming...that's really how it is. You hear people screaming all night, and that's all I used to think about, we're in hell," said Herman Tate.
He was sentenced to life at the age of 28 for a low-level, non-violent, drug offense.
"Buried alive. Just imagine, putting you in a casket, and you're alive but you can stand up and walk around in it, that's what it is, you can't get out," Tate told CBN News.
His sentence fell under the "Three Strikes" drug law passed by Congress in the 1980s. The law states that if someone is charged with a federal drug crime and already has two prior drug offenses, then that's the "third strike," and a federal prosecutor can require the judge to impose a mandatory life sentence.
"Congress got together and passed a law to make sure, the intent was to make sure that similarly, dangerous repeat drug offenders received similarly serious sentences. So you want people who are similarly dangerous to get similar sentences," explained attorney MiAngel Cody, Director of the Decarceration Collective.
Tate's first strike came in 1992 for selling half a gram of crack. He was sentenced to six months' probation.
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He gained his second strike two years later. That time he sold 7.7 grams of cocaine and was sentenced to five years in prison, but was only required to serve eight months.
Then in 1998, he struck out, charged with conspiracy to sell cocaine.
Tate, however, had never heard of the "Three Strikes" drug law and since no drugs were found in his possession, he chose to go to trial. The prosecutor filed what's known as an 851 Notice.
"That means that even if the judge wanted to take pity on you, even if the judge believed that you could be rehabilitated, even if the judge believed that the sentence was too harsh, that sheet of paper meant that you had to receive a mandatory life sentence without parole," explained Cody.
Tate headed to federal prison. It took two years for the gravity of his sentence to sink in.
"I keep seeing people going home...and I realized, 'Man I'm never going home,' and I just....it just hit me all of a sudden and that's when I realized that I had a life sentence in the federal system," Tate said.
The "Three Strikes" federal drug law covers all 50 states. Many states have gone further, expanding Three Strikes laws that impose mandatory life sentences for three convictions of certain felonies.
In California for example, the 1994 "Three Strikes You're Out" law was designed to keep murderers, rapists, and child molesters behind bars.
Today, however, more than half sentenced under that law are serving life sentences for non-violent crimes, evidence that these Three Strike laws can result in unintended consequences.
"What's interesting about the federal "Three Strikes" drug law is that you might have a person who has two prior convictions that are violent, like murder or kidnapping, then they have a third drug conviction. They would not be subject to a mandatory life sentence. The federal "Three Strikes" drug law only applies to people who have three drug convictions, even if those prior drug convictions are minor," Cody explained.
Many of her clients were teenagers or young adults when convicted with their third strike, which basically erases taking into consideration the possibility of maturation and grown, stamping them instead as irredeemable.
"The most potent example of the human spirit is we tell someone, 'You're buried alive and you're never going to leave prison,' and for the person to still have the audacity and the wherewithal to get up every day and to try to make some meaning of your life, for me it's deeply inspiring. It's why I do the work. It also is the most salient example of why we ought to go back and look at these different laws," Cody said.
Three Strikes Reform
When Congress passed the Fair Sentencing Act in 2010, it provided the potential for a lower sentence but did nothing for those already in prison.
Then in 2018, President Trump signed the First Step Act, which finally allowed the opportunity to reconsider prior sentences.
"Those two pieces of legislation together have created conditions that allow lawyers like myself and people who are in prison to get back into court and to finally ask judges to consider the human being that they are," Cody said.
In reading the new law, Tate regained a sense of hope for the first time in nearly 22 years as he realized that he fit the criteria.
Cody and her team officially requested his life sentence be reduced. In January of 2020, Tate learned of his freedom.
"I'm just watching the TV and my case manager comes out and called my name, 'Tate Tate,' and I take my earbuds out and I'm like, "Yeah, what's up," and she's like, 'You need to come to my office right now.' I'm like, 'Oh, shoot,' so I go over there and she turns around with a big smile on her face. I'm like, 'What's wrong with you?' She said, 'Tate you're going home.' I just started crying," Tate remembered.
Cody and her team have won freedom for 50 men and women who were previously sentenced to die in prison.
"And we are proud to say that not one person has ever been re-arrested, not one person has ever gone back to prison," she said.
Still, a disproportionate number of those still behind bars are black.
"There are all these places along the highway towards imprisonment where people get off and then there are on-ramps. What we've seen is that disproportionately it's more difficult for African-Americans to get off that highway and that more of them are on that highway towards mass incarceration imprisonment. Some of that relates to charging decisions that are made, some of it relates to rates of arrest, some of it relates to community resources that are available," Cody explained.
No legislation reforming the federal "Three Strikes" drug law includes those sentenced to life for marijuana convictions, but Cody believes more change is coming.
"I absolutely believe that transformative justice will occur and the reason why is that I think people are awake and paying attention," she said.
Cody says now is the time for the American people to ask questions and put pressure on our elected officials. That's because voters can make a major impact at the ballot box and be the catalyst that helps keep Cody's clients and many others from being buried alive behind bars.
The Decarceration Collective teamed up with the Buried Alive Project to produce a documentary sharing the stories of the men and women they've saved, but also those still serving life sentences under the "Three Strikes" law. Its release date is still to be determined.