You can thank me later.

Consider the facts:

On April 1, 2006, Officers Craig Miller, David Rivera and Charles Gargano of the New Haven police department were patrolling the Fair Haven  neighborhood as part of their duties with that city’s drug interdiction unit. The neighborhood was known for frequent drug trafficking activity. The  officers  were in an unmarked patrol car, operated by Rivera. At approximately 5:15 p.m., the officers observed a Chevrolet Impala turn right from Ferry Street onto Grand Street without signaling. The officers followed the Impala around the block, during which time they also observed that the  defendant, who was operating the car, was not wearing a seat belt. Pursuant to police department policy, the officers called dispatch to request a  marked cruiser in order to effectuate a motor vehicle violation stop.

Three marked patrol cars responded to the dispatch call, and stopped the Impala at the corner of Ferry Street and Grand Street. The unmarked  patrol car stopped approximately one half of a car length behind the Impala. While still in their unmarked patrol car, Rivera, Miller and Gargano  observed the defendant make a movement toward his right side, which led them to believe that the defendant might be concealing a weapon. The  three officers then approached the Impala. As they were approaching, Miller observed the defendant close the center console in the front seat.

Rivera removed the defendant from the vehicle, handcuffed him, and frisked him for weapons. While frisking the defendant for weapons, Rivera  discovered $1369 in cash and several cell phones on his person. At the same time, Miller and Gargano, as well as several officers from the other  patrol cars, removed the two passengers from the vehicle, handcuffed them, and frisked them for weapons. Miller then returned to the car and  observed some plastic protruding from the center console. He opened the console and removed plastic bags that he believed to contain crack  cocaine. The officers also determined that the Impala was owned by a rental car company. Subsequent testing revealed that the bags discovered in  the console contained approximately 21.5 grams of freebase cocaine, commonly referred to as crack cocaine.

So, let’s recap, in normalspeak: officers were in a “minority high crime neighborhood”, looking for an excuse to pull someone over. They saw the defendant commit a motor vehicle violation. They pulled the car over and saw the defendant “make a movement toward his right side” (whatever the hell that means) and decide not only that he was armed, but because he was in a “MHCN”, he was dangerous and probably selling drugs. They handcuffed everybody and searched them and the car with impunity. We now contort ourselves to affirm this stream of clearly illegal activity by the police.

The defendant filed a motion to suppress relying on Arizona v. Gant, which holds that once you have arrested the occupants of the vehicle, there is no more legitimate “officer safety concern”, so a warrant must be obtained.

The Court rejects (emphatically!) the defendants contention that Gant applies since the defendant wasn’t technically arrested until after the drugs were discovered and instead agrees with the State that the “protective search” rubric of Michigan v. Long must control. In Long, the Supreme Court said that the:

purpose of protective searches to be the concern that if the suspect is not placed under arrest, he will be permitted to . . . [go free], and he will then  have access to any weapons

and thus, when analyzing a warrantless search under Long:

our focus is on whether the officers had a reasonable and articulable suspicion to believe that the defendant posed a danger and might access the  vehicle to gain control of a weapon.

Well, clearly, since the defendant wasn’t actually arrested and merely in a state of “custodial arrest (maybe)”, the question then becomes whether the officers had a reasonable and articulable suspicion that he posed a danger and that there was a weapon in the vehicle.

Remember now, that this was in a “minority high crime neighborhood” and that all three officers saw a “movement to his right side” and one saw him “close the center console”. That same officer then innocently “returned to the car” and saw “some plastic protruding” from that very same center console.

But that’s not enough, is it? Surely even the CT Supreme Court would not hold that that is sufficient to conduct a warrantless search of a motor vehicle? Of course not. Which is why we have the “collective knowledge of law enforcement” exception to the Fourth Amendment.

In conducting this analysis, we are cognizant of ‘‘the well settled principle that, in testing the amount of evidence that supports probable cause, it  is not the personal knowledge of the arresting officer, but the collective knowledge of the law enforcement organization at the time of the  arrest that must be considered. See Poulos v. Pfizer, Inc., 244 Conn. 598, 619 (1998) (McDonald, J., concurring) (Fourth  amendment law recognizes that the collective knowledge of the police determines probable cause. See Whiteley v. Warden, 401 U.S. 560, 568 [1971]; see 2 W. LaFave, Search and Seizure [3d Ed. 1996] § 3.5 [b], p. 259 n.46.); State v. Acquin, 187 Conn.  647, 657 (1982) (when we test the quantum of [evidence supporting] probable cause, it is not the personal knowledge of the  arresting officer but the collective knowledge of the law enforcement organization at the time of the arrest which must be considered)’’

Justice Who?

Miller and Rivera saw the defendant “make a movement to his right side”, Miller saw the defendant close the center console, Rivera frisked the defendant and pulled out a gun-like cell phone and cash, and Miller saw the plastic in the console. Of course, they all knew that it was a minority high crime area. And there was testimony that Miller and Rivera shared their observations and findings with one another. Wait, there wasn’t? Oh nevermind. Their knowledge is imputed onto one another.

In fact, applying Whiteley, why stop there? What if Rivera wasn’t on the scene and hadn’t discovered the call signs of drug activity: cell phones and cash? Wherever he was, he must’ve known that those items indicate drug activity. And Officer Krupke, on his beat at the other end of town surely knows that anyone who has cell phones and cash is an armed and dangerous drug dealer! So, of course, the officer at the scene had articulable and reasonable suspicion to search the vehicle. And look, they don’t even have to arrest anyone! Wheee!!!

Because anyone in the police department anywhere is cognizant of the fact that if you’re driving in a minority high crime neighborhood without a seatbelt and you make a movement to your right side and close the center console and happen to have cash and a cell phone, you must be an armed and dangerous drug kingpin. It’s in their – and your – DNA.

Welcome to the 24th Century, where the police are the Borg. The Fourth Amendment will be assimilated. Resistance is futile. Don’t drive.

[A plea: if anyone figures out what "movement to his right side" means, please leave a comment. I have no fucking clue. Kthxbai.]

I'm not as think as you stoned I am

(Title sung to the tune of “If you’re happy and you know it…” What? It’s 11:00pm. Buzz off.)

While much of the news media and indeed the blawgosphere has been preoccupied with the news that NYC isn’t really a big, bad and dangerous place, curious little attention has been paid to another story out of New York: that under Mayor Bloomberg, drugs arrests have spiked and that blacks are 7 times more likely to be arrested for drug offenses than whites.

Thanks to Matt at Change.org (a blog you should be following if you aren’t already), we learn that a new study (and a related NYT article) has been published analyzing the incidence of drug related arrests in the Big Joint:

In 2008 alone, more than 40,000 people were arrested in New York for low-level marijuana offenses — and 87 percent of them were black of Latino. When you consider that white people are more likely to use pot than African Americans, the problem here becomes even clearer.

Put another way: In 2008, the police made more pot arrests than in the 12 years of Mayor Koch, plus the four years of Mayor Dinkins, plus the first two years of Mayor Giuliani. In other words, in one year, 2008, Bloomberg made more pot arrests than in 18 years of Koch, Dinkins and Giuliani combined.

Think about that for a New York minute. And then think about the fact that of those 40,000 odd people, 34,800 odd were black or hispanic.

The Mayor’s office defends this tactic, of course, as a variation of the “broken windows” theory and points to a 35% reduction in crime since 2001. What this position ignores, however, is that the arrests are severely racially skewed. What they’re policing are black and hispanic neighborhoods and people in those neighborhoods, not drug users. The downside of such a tactic is that it forces minorities to have a disproportionately greater amount of contact with the criminal justice system, it reinforces stereotypes and long-held notions about the relationships between minority communities and the police and of course, those ever growing arrest and conviction records.

[Of course, this is not the only area in which the law enforcement and criminal justice system exhibits racial disparity.]

Whether this is a product of reduced funding, of lengthy sentences coming home to roost, of a zero-tolerance “tough on crime” policy enacted years ago or of the sheer overcriminalization of our society is an open question (my guess: a mix of them all). When a small state like CT has 1663 crimes defined in its statutes (and that’s in 2006; several more have been added since) and when books are written warning us that we commit three felonies a day, it’s time for someone to sit up and take notice. And by someone I mean those with the power to change the direction we’ve gone in: legislators and voters. So you, all of you.

The repercussions of too many people in the justice system are beginning to reverberate throughout the country: Georgia is on its 4th lawsuit to force indigent defense spending; Michigan is being sued by three defendants who claim that the lack of funding forced their public defenders to pressure them into entering pleas of guilty; the Missouri Supreme Court recently allowed public defenders the nuclear option of shutting down their doors and refusing cases if caseloads got unmanageable; the costs in Ohio are rising quick; the Fresno public defender’s office got permission to lay off 6 attorneys before the end of the year to balance their budget; and contract attorneys in Nebraska have been receiving a $100 flat fee instead of $50 per hour for all misdemeanor cases.

Should I even go near the financial black hole that is the death penalty?  How, in times where basic rights of defendants may be in jeopardy – ordinary run of the mill defendants, mind you – can we even consider sustaining the machinery of death?

This will not end anytime soon and even if there is an alleviation of the financial crisis, the impact on the criminal justice system will be temporary. More crimes will be committed, more knee-jerk reactions will be induced and harsher sentences will be given out. The burden continues to build until there is a fundamental change in the way we think about the numbers, the crimes and the system.

A report from 2000, that I’ve mentioned before, seems to have gotten it right. Too bad no one is listening. I’ll reprint the salient points:

Prison overcrowding has a cyclical pattern in Connecticut — reaching a crisis point about every 10 years. The committee report showed most of the causes of prison overcrowding occurred outside the administration and jurisdiction of the Department of Correction and these complex issues and problems cannot be addressed by a single state agency. Specifically, the program review committee identified five main causes of prison overcrowding. They are:

• Despite the decrease in arrest and crime rates, the number of offenders in prison or jail continued to increase due to the “war on drugs”, increased funding for police, increased role of victims and victim advocacy groups in the court process, added bed capacity in the correctional system, recidivism and technical violations of probation and parole, harsher penalties for certain types of crimes, and narrowed eligibility for community release and alternative sanction options.
• Convicted inmates were remaining incarcerated for a greater portion of their court-imposed prison sentences as a result of the shift from an indeterminate to a determinate sentencing structure, elimination of “good time”, creation of time-served standards for parole eligibility, and the enactment of several “truth in sentencing” initiatives.
• The aggressive “tough on crime” approach supported by the legislature and adopted by the executive and judicial branches allows the criminal justice system to narrow its use of discretion and take a more conservative and less controversial approach to punishment.
• A lack of prison beds, especially high security and pre-trial beds, forced DOC to operate at capacity.
• Poor planning and a lack of an accurate population projection and offender needs analysis contributed to the cycle of overcrowding and hampered DOC’s efforts to adequately plan for new or expanded facilities.

In reviewing options available to manage and control growth of the inmate population, the committee found Connecticut cannot build its way out of a prison overcrowding crisis. However, prison expansion is one model to address prison overcrowding. This strategy has been Connecticut’s primary response to prison overcrowding over the past 20 years. It is the simplest but least effective and most expensive approach. Services in this model are concentrated primarily on the small percent (25 percent) of the offender population in prison.

And yet here we are: more crimes, longer sentences and an almost unmanageable burden. We’re still fighting the absurd war on drugs and on parolees and probationers. While our prison population has seen somewhat of a slight decline from the record numbers of last year, it would be a tremendous mistake to consider that an improvement. The record numbers were the result of the Governor’s ban on parole. But don’t let that obscure the fact that even prior to the ban, the population numbers were already at the breaking point.

And it’s not going to get any better. Per the OPM‘s most recent projections, the population is expected to increase from its current numbers to around 18, 942. [Here are the Dec 2009 monthly indicators.] The most recent breakdown of inmates by crimes is this one from 2007. And here’s the most recent recidivism study [there's a wealth of information in there if you're interested].

So how is this to be done? Over the years, I’ve made many suggestions: legalize marijuana, get realistic about prison sentences, divert all non-violent offenders into treatment and community based rehab, address the problem at its root, etc.

[Update: This NYT editorial makes the case for smart reforms, pointing to a slew of legislation pending in NJ to make the prison system more rehabilitation centric. Among some of the proposals is one akin to the ban the box idea implemented in New Haven earlier this year.]

But it’s all a futile exercise. It’s never going to happen unless there’s a fundamental shift in the thinking. That shift may well be driven by the financial engine. So how about taking a different tact. How about we keep detailed statistics: how many people end up going to jail for a violation of probation for drug problems instead of to a treatment facility? Let’s keep a record of that for 3 years and calculate the cost of sending that person to jail. How about defendants sentenced to 7 years in jail where 5 years would have been just as good. Keep a track of the costs there. How many inmates were denied entry into programs for lack of beds and so instead were forced to take a prison sentence? Let’s keep track of that.

At the end of 3 years, let’s add it all up and look at the staggering cost of our penal system. Let’s put it into real numbers and compare it to the budget shortfall. Extrapolate that over the last 20 years and I bet we will see that these “tough on crime” policies have come at a significant, tangible cost to us.

So, it’s probably unnatural and unhealthy to be so giddy upon learning that Gov. Rell has decided not to seek re-election, but as most of you know, I can’t stand the woman. And that’s putting it mildly. I let out an audible yell yesterday when Ann Nyberg tweeted that she wasn’t going to run. My colleagues looked at me, much like they always do, like I had three heads. So maybe my disdain of the American Idol Governor knows no bounds.

But there’s good reason. After all, she has singlehandedly done so much to create such a disregard for the law and the rule of law, that sometimes I wonder who is worse: the law-breaking “criminals” she sought to protect our white community from or the law-ignoring bureaucrat.

She was the most dangerous of the “tough on crime” pols: sweet, nurturing, grandmotherly. She would lull everyone into sleep with her gentle affect and then decree the most outrageous acts of lawlessness this State has seen this decade.

First, there was Cheshire. Oh boy was there Cheshire. The brutal crimes in a white suburban neighborhood served not only to rouse the Governor from her mid-term siesta, but also had the side-effect of completely blinding her to common sense, and well, the rule of law. So the first thing she decided to do (well, sort of) was ban parole. That lasted for 4 months and resulted in severe overcrowding and a tremendous burden on state resources. That’s when Colin McEnroe coined the moniker “The American Idol Governor“. I still can’t get enough of that. She then proposed some truly scary and not very well thought out “reforms” of the criminal justice system, some of which unfortunately made it into law. Then she wanted CT to have a three-strikes law, in the face of all scientific research on its uselessness. Then came the unhinging, aka, “The David Pollitt Project“. I’m not even going to touch that. And finally, the veto of the death penalty abolition bill.

I write all of this, not to disparage her, but to remind myself and you  – voters all – of the absolute effing nonsense we’ve had to put up with these past few years. Will any of the people who’ve announced they’re running for Governor be any better? They almost have to, don’t they, because it can’t get much worse than this.

So while I wish her well in her personal life and hope that her health remains strong, I will not be sad to see her become former Governor Rell. I’m not sure there was a person less equipped to take on that job.

And now, on to the big question. What needs to be done? The first response is obvious: abolish the death penalty. But there are so many more things that need to be changed about the criminal justice system in our State. In my mind, there’s only one candidate who is qualified to do that. So, you guys can be the first to hear it: I am hereby announcing my candidacy for the Governor of the State of Connecticut and I will be running on the Smart on Crime platform for the “It must be easy; she did it for so long” party.

More details about the, well, details of my platform will follow in subsequent posts. I’m now going to go and do a cartwheel.

Dear Governor Rell,

You and I haven’t always gotten along. In fact, it’s no secret that I don’t like your views on criminal justice and your disregard for the “rule of law”. But these are strange times and strange times make strange bedfellows – or in our case, strange letter writers and recipients.

So, in the spirit of bi-partisanship so convincingly advocated for by our C-in-C, I propose the following changes that could save the State some money, even if it isn’t much. Perhaps it can save a job or two.

1. Stop publication of the Law Reports. In this day and age, there really is no reason for hundreds of thousands of copies of the Law Reports to be made every single week, year after year. No one really reads them, anyway. Just make one PDF file and upload it to the Judicial website. Anyone who wants a paper copy can download the damn thing and print it out on their own dime.
2. You know that the general statutes are available online, right? For free? Yet, agencies buy them for $335 a set. I can tell you that every single attorney I know has a full set for himself/herself. Let’s stop this spending.
3. Permit liquor sales on Sunday. More liquor sales = more tax revenue. Liquor sales on Sundays = happy people.
4. Decriminalize possession of marijuana, eliminate the excess penalties for sale w/in 1500 feet of any city object and remove mandatory-minimum sentences.
5. Eliminate the death penalty. A study concluded that NJ spent $253 million on the death penalty over 20 years. The NJ public defender’s office reported [pdf - page 31] that it would save $1.46 million per year if the death penalty were abolished. Who knows how much the State or corrections spends. I’m sure our numbers aren’t that different.

Madam Governor, these are but small measures that can save costs and help reduce the deficit. Don’t forget to read the comments, where my readers (who are generally much smarter than I) may make additional suggestions that would help reduce the deficit further.

Critically,

Gideon

Finally, it seems that legislators might be getting “smart” on drugs and drug crimes. And no, the impetus isn’t a wake up call on the inherent unfairness of the drug crimes and the racially disproportionate impact they have. It’s the economy, stupid.

Sen. Toni Harp, chairwoman of the powerful appropriations committee, and Senate Majority Leader Martin Looney hope economics will succeed where other arguments have failed in convincing their colleagues that the costs of prosecuting and punishing pot smokers is an expense Connecticut can no longer afford.

“We’ve got to take a strong look at what we want to pay for as a state,” said Harp, D- New Haven, who with Looney is co-sponsoring a bill that would punish low-level marijuana users with a fine, not a criminal charge.

“To waste our resources on this small problem is not a good use of the people’s money.”

Now, they’re not going as far as I would go, so simmer down (and you know who you are). The proposed bill would decriminalize possession of less than one ounce of marijuana – essentially what Massachussetts did this past November. People found using that small an amount would be fined: akin to a parking ticket.

There’s a twofold benefit to this: not only do we save the money from the prosecutions, convictions, programs and – of course – incarcerations, but also generate revenue for the State from the fines. A Harvard study estimated that MA spent $30 million a year on low-level drug enforcement and that is certainly money that can be saved and spent elsewhere.

But what’s really making me shine my mutton chops in this story is that the bill also proposes reducing the “w/in X feet of a school” zone. That means no longer will the entire city of New Haven subject a drug seller to an extra penalty.

Connecticut legislators also will consider a measure that would reduce the size of drug-free school zones. Under state law, any drug activity is subject to harsher criminal penalties if it takes place within 1,500 feet of a school, housing project or day-care center. Critics say such laws unfairly discriminate against residents of cities and densely populated suburbs.

Indeed. Take a look at the map in this post. I’d obviously like them to go further and eliminate the whole silly statute (see the map post). It clearly isn’t working as a deterrent and does nothing but punish those that live and “work” in the city of New Haven (or other large cities).

While the legislators are considering this bill, perhaps they should spend some time looking through the General Statutes and start eliminating some other crimes that are redundant and duplicative (*cough*home invasion*cough*).

While that may be a pipe dream, the decriminalization of small amounts of pot may not be. Obviously, the big battle lies ahead, with the bill needing to actually make it out of committee and onto the floor of the legislature for a vote. But there is hope. And that’s something we could all use these days.

*FATWOD: Fight Against The War On Drugs

Consider a building with a few broken windows. If the windows are not repaired, the tendency is for vandals to break a few more windows. Eventually, they may even break into the building, and if it’s unoccupied, perhaps become squatters or light fires inside.

Or consider a sidewalk. Some litter accumulates. Soon, more litter accumulates. Eventually, people even start leaving bags of trash from take-out restaurants there or breaking into cars.”

Theories are, of course, the products of fertile imaginations. Unless they’re tested out – directly or indirectly. Which is why I write again. This week brought the coincidental juxtaposition of two stories dealing – directly and indirectly – with the broken windows theory.

The first direct test of this theory comes from some enterprising researchers in the Netherlands. The theory

does not necessarily mean that people will copy bad behaviour exactly, reaching for a spray can when they see graffiti. Rather, says Dr Keizer, it can foster the “violation” of other norms of behaviour.

So the researchers set up an elaborate set of experiments, whereby they could observe if people were more likely to litter if there was graffiti on the walls or litter already on the ground. What they found was that when the alley contained graffiti, 69% of the riders littered compared with 33% when the walls were clean.

That’s not all. To test the central tenet of “broken windows” – that small crime begets big crime – the researchers set up an experiment to see if people would steal in an air of disorder:

The most dramatic result, though, was the one that showed a doubling in the number of people who were prepared to steal in a condition of disorder. In this case an envelope with a €5 ($6) note inside (and the note clearly visible through the address window) was left sticking out of a post box. In a condition of order, 13% of those passing took the envelope (instead of leaving it or pushing it into the box). But if the post box was covered in graffiti, 27% did. Even if the post box had no graffiti on it, but the area around it was littered with paper, orange peel, cigarette butts and empty cans, 25% still took the envelope.

To see the broken windows theory in action, we have to travel almost 6,000 miles to Hartford, CT, where the Community Court has been helping the community since 1998 [an interesting report written in 1999 by the Center for Court innovation which helped found the ComCourt]. This report details the origins of the community court and emphasizes its focus:

Given that the Hartford Community Court serves the entire City, it is designed to maintain close contact with representatives of each of the City’s 17 neighborhoods. Each neighborhood has a problem-solving committee that determines priorities for their communities, including crime and non-crime issues to be dealt with by the police, the Community Court, and other appropriate City departments (e.g., public works).

Which of course brings us back to the topic at hand:

Redefining Behavioral Norms & Expectations The Court is also attempting to influence behavioral norms about low-level nuisance offenses. Court planners were ambitious in lobbying for legislation that expanded the menu of sanctions available in municipal ordinance cases, sending the message that certain forms of disorderly behavior will not be tolerated.

10 years on, the Court seems to have been a success. The Courant has run a few pieces on the Court (calling it Judge Norko’s court – Judge Norko was the first judge and recently returned there) and on the impact of the court implementing the broken window theory.

Community court has made a difference to the city and undoubtedly to the defendants who pass through its doors on Washington Street. It does not yield drama worthy of “Law and Order.” It deals with misdemeanors that might otherwise be dismissed by the courts handling more serious crimes.

Judge Norko’s court metes out justice to loiterers, prostitutes, litterers, drunks, disturbers of the peace and other scofflaws who spoil the quality of neighborhood life.

The court was crowded recently with offenders waiting for their one- or two-day community service sentences. Once they complete the service hours, their records are wiped clean. For that reason, many people declined to give their names when talking about their experiences at the court. Others said they had been wrongfully arrested and planned to fight the charges — an option all defendants have at the court.

But for repeat offenders, the system aims to help them through whatever problems led them to offend in the first place. A drug addict might be led to addiction services; prostitutes can enroll in a specialized counseling program; petty thieves can apply for food stamps at the courthouse.

Kudos to the Court and kudos to Judge Norko. Perhaps Kelling was right. The theory might just work after all. It may be time for other cities and states to follow their lead and start dealing with the little problems that lead to big problems.

The Community Court is the one aspect of the criminal justice system that I am quite happy with. This addresses, on a small scale, the issues that I think are most important to improving law and order in a city: drug addiction and alcoholism. Those across the street in the regular criminal court are not that much different from the folks in community court; they just didn’t have the community court to help them back then.

The relevant question, obviously, is whether implementing a community court has done much for Hartford’s general crime. The answer depends on several factors, but the statistics are what they are: Since 1998, there has been a drop in violent crime (although it had been dropping pretty steadily since an all-time high in 1990). It’s possible that this drop in crime from 1990 onwards can be attributed to tougher sentencing or the elimination of indeterminate sentencing or an economic boom, but to the residents of Hartford, the community court has made an undeniable impact.

For more on the community court, you can read its newsletters here or see pictures from the 5th anniversary celebration here. For more general information, see here.

Just like the economy, however, this failure of the legal system should come as no surprise. Back in May, I wrote about the mess in Minnesota (and followed up with a June post about Florida) [full coverage here] and our sister blog PD Stuff has been covering money problems for years. Nevada will face some problems starting next year. Things don’t look all rosy in Connecticut, either, as legal aid is taking a hit.

The NYT piece is rightly drawing a lot of attention in the blawgosphere. Bob Ambrogi and J. Craig Williams devoted their recent podcast to this problem by interviewing the Miami public defender Bennett Brummer and NLADA research director David Carroll. [The podcast is at the end of this post.]

This is a very serious problem. As funding for indigent defense declines with no corresponding declines in prosecutions, defendants will experience greater wait times for their trials, resources will be stretched thin and the criminal justice system will produce far more wrongful convictions. There will not be enough time to conduct proper investigations, to hire experts and, frankly, to go to trial.

If a public defender has an obscene number of clients, a number which grows every day, there will a lot of pressure to resolve cases without much advocacy. This is where the rest of the justice system needs to step up. Prosecutors need to take their duty to seek justice more seriously and drop the pursuit of “wins”. Judges need to take a more mediation-oriented approach and broker fair deals and not permit the State to demand the moon.

From the NYTimes piece:

Mr. Jones, in between hushed conversations with clients in the hallway or the holding pen, said he wished he had more time to investigate cases and could go to trial more often, rather than accepting the police version of events and then, after a short discussion, helping his clients make a life-altering deal.

“I’d love to have time to visit the crime scene and do more legal research,” Mr. Jones said.

No defendant should ever have to put up with this. No lawyer should ever be in a position where he is advising a client based on incomplete information. This is not only a money issue, but a Constitutional issue. Skimping on public defenders offices now will only postpone the problem, because there will be a greater number of successful habeas corpus petitions or appeals, which will result in new prosecutions.

Or worse: Federal courts will have to step in and force the state to pay for adequate funding, something no one really wants. So you know, might as well bail them out now, right Prez-elect Obama? Seriously, who better to give federal money to? The banks that set up their own downfall? The auto-industry that refused to innovate? Or the hardworking public defenders that protect your and my rights, day in and day out, doing a community service for little money?

But these are tough economic times. Money is drying up. Perhaps this is a very appropriate opportunity to look at truly reforming the criminal justice system. Let’s provide more alternatives to incarceration and true rehabilitation, let’s not keep non-violent offenders in jail any longer than we absolutely need to. As costs of the prison complex go down, there will be more money to fund the defense of the innocent man. We should start to look at the exorbitant sentences handed down by judges. Do we need a 40 year sentence when a 15 year sentence should do? Do we have to be punitive in our punishments? Must people be on probation for 35 years? A true reformation of the criminal justice system would go a long way towards alleviating these woes.

Then, of course, there’s the death penalty.

[display_podcast]

R U mai fren or mai deelerz?

In another stirring strike for the war on drugs, the Second Circuit last week issued this impressive decision in U.S. v. Luna (but the appeal is really about some guy named Hawkins).

The facts go thusly: Hawkins wanted to buy some drugs from Luna, so he talked to him about buying 5 grams. That sale didn’t materialize. Then, one day, he called Luna and said that two kids from work wanted to get high, so could Luna please sell him some drugs? Luna did.

Five days later, Hawkins called Luna back and said, I know this white kid who’s got a $100 for an eight-ball, but he didn’t have the money, so he’d take the drugs from Luna, get the money from the white kid and bring the money back to Luna. The Court characterizes it as “drugs on credit”. This sale never materialized.

Fast forward to the trial and they are all convicted of conspiracy. Hawkins moves for judgment notwithstanding the verdict and Judge Stefan Underhill grants his motion.

The appellate court, in what seems to be a continuing display of wisdom, reversed. [This decision is not to be confused with the other gem from a few months ago, which makes it illegal to share drugs.]

They acknowledge that the buyer/seller relationship itself cannot constitute a conspiracy to distribute

however, where there is additional evidence showing an agreement to join together to accomplish an objective beyond the sale transaction, the evidence may support a finding that the parties intentionally participated in a conspiracy.

So Hawkins was essentially a “guy”. You know…I have a “guy”. Someone who does drugs and knows where to get you some from. He’s not a dealer, but he has a dealer. He’s the guy in college whose parties you went to because you knew there’d be some pot (or coke or meth..whatever, I’m not judging).

The Court acknowledges that there is no evidence of Hawkins intent with respect to the first transaction, so the entire conspiracy to distribute would be based on the evidence of the second transaction – the white kid whose money he would have to go get. Because if he was getting it on credit, it must mean that he was dealing. After all, it isn’t like “the white kid” could have called Hawkins and said “I want some, meet me here and I’ll give you the money”. The Court also seems taken by the fact that Hawkins programmed Luna’s number into his cell phone.

Right, because I remember every number ever told to me. And even if I could, why would I in this day and age? It’s called convenience, 2nd Circuit, not conspiracy to distribute.

So essentially, those of you who’ve ever bought some for a friend from a “guy” you know, you’re guilty of conspiracy to distribute. Enjoy those 15 years with the Feds.

This just goes to show that you should not do drugs. Not because they’re bad for you or because it’s morally wrong or something, but simply because the Government (and the Courts) don’t like you and will make you pay for it, even if they have to contort like Nastia Liukin to do so.