Austin Criminal Defense Lawyer : Austin Criminal Defense Lawyer & Attorney : Jamie Spencer Law Firm : DWI, DUI, Drug Possession : Serving Georgetown, Round Rock, San Marcos, Travis, Williamson, and Hays County, Texas

Howard Schultz is widely revered in business circles for taking a tiny coffee shop and turning it into Starbucks (2005 revenue – over $6 billion U.S. dollars). Print and TV magazines crawl all over themselves trying to get an interview with him.

The vast majority of Americans are not in favor of jailing anyone for possession of small amounts of marijuana (stay with me here, I’ll get back to Starbucks in a bit). In fact, based on the reactions I see when I explain the potential draconian consequences of a drug conviction to first time marijuana offender clients here in Austin, I’d venture to guess that most folks would be appalled to find out what could happen, even if it usually doesn’t. (Fortunately, there are usually creative ways to avoid convictions on first time offenses – but my point is about the penalty range, and the collateral consequences.)

Yet despite the public’s generally negative reaction to incarcerating marijuana users, I’ve also found a substantial number of people who say they are for decriminalization “for simple possession”, or “for users but not for dealers”. (Here’s where we get back to Starbucks.)

Why is it that when the business man sells coffee, and makes an obscene profit off of it at that, we applaud and wish we had his idea first? 

But when we read today’s story that three folks were arrested for possession of thirty pounds of marijuana in Hays County, we react very differently…(they are facing ten years in prison)

If you believe that it’s “OK” for a guy to sit on his couch, not bother anyone, and smoke a few grams of marijuana in a joint, then you can’t be offended when you find out the guy down the street who sold it to him has a pound. Or that the guy who sold it to the guy down the street has thirty pounds or even more. That’s how a business supply chain works after all.

We live in a supply and demand country, and 99% of the time, we deify the entrepreneur who profits greatly. It’s about time we drop the hypocrisy and eliminate the ridiculous penalties when it comes to marijuana and controlled substance businessmen. 

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Former president Gerald Ford’s passing is regrettable, of course, and I’m sure the media will bombard us with all sorts of tributes to the man, many of which may be deserved. I write here, however, of his pivotal role in the unfortunate escalation of the so called “War on Drugs”, and its aftermath.

From his April 27^th, 1976, Special Message to Congress address:

When this problem exploded into the national consciousness in the late 1960's, the response of the Federal Government was swift and vigorous. Federal spending on a comprehensive program to control drug abuse grew from less than $100 million in 1969 to over three-quarters of a billion in 1974; specialized agencies like the Drug Enforcement Administration and the National Institute on Drug Abuse were created; and international diplomatic efforts to mobilize the assistance of foreign governments in a world-wide attack on drug trafficking were intensified.

With the help of State and local governments, community groups and our international allies in the battle against narcotics, we were able to make impressive progress in combatting the drug menace. So much so that by mid-1973 many were convinced that we had "turned the corner" on the drug abuse problem.

Unfortunately, while we had won an important victory, we had not won the war on drugs. By 1975, it was clear that drug use was increasing, that the gains of prior years were being lost, that in human terms, narcotics had become a national tragedy. Today, drug abuse constitutes a clear and present threat to the health and future of our Nation.

The time has come to launch a new and more aggressive campaign to reverse the trend of increasing drug abuse in America. And this time we must be prepared to stick with the task for as long as necessary.

Ford goes on to ask Congress to pass legislation mandating prison instead of probation, to enact mandatory minimums, even to deny bail to persons accused of certain drug crimes. (Yes, bail is for the accused, not the convicted, and theoretically the right to reasonable bail is protected by the eighth amendment.)

Perhaps in 1976, it was too early to know that an expensive, arbitrary, and severely punitive solution would utterly fail when it came to attacking the problem of drug abuse. Thirty years later, however, there is no excuse. We have been hearing the same thing for over 3 decades, and we do now know that incarceration and mandatory minimums are both ineffective and immoral.

The time has come for a different “solution”.

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Thomas Van Wyk, who blogs regularly at The Liberator and The Doors of Deception has started a new Drug Liberalization Webring over at Bravenet. Visit the home page and/or join here:

This sitering is for: people who support full legalization and deregulation of drugs, the end to the demonization of drug users, decriminalization of drugs, the scaling back of the "War on Drugs," or at least a rethinking of the madness of current drug law and policy.

Websites related to the history of drugs or to general drug information are also welcome, as are websites with a "harm reduction" philosophy toward drug use. Political and law-related blogs which do not focus exclusively on drug policy, but have owners who are nevertheless concerned about the "war on drugs," are also welcome.

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Three months into blogging and I’ve been tagged – and by one of my favorite bloggers Scott Henson (Grits for Breakfast is in my top five most read on my RSS reader). I don’t usually participate in memes, but this one struck me. You’re supposed to come up with 5 things folks who know you might be surprised to hear, so…

1) I only have one kidney. Apparently, it’s not that unusual. It wasn’t congenital, the other one was removed at birth. I’m told I was bright blue when I arrived, and the doctor said “cut that boy open, there’s something wrong with him”. A kidney had burst during childbirth and it was immediately removed. I don’t remember any details – I was kind of young at the time.

2) I have a small family. There were only four other people in my family at the time I was born. One older sister, mother, father, and maternal grandmother. My parents were only children, so no aunts, no uncles, no cousins, etc. No living siblings of my only grandparent so no second cousins, or second uncles, or once-removeds, or whatever.

3) I hate meatloaf. I know it’s a staple of American food, and literally everybody loves it. I have tried many different versions (because people always say, “You have to try my mother’s meatloaf!”) My mom is a fantastic cook, and she always used to say, “You like hamburger, it’s just like hamburger.” So I’d say please make me a hamburger. I like everything else though. Everything. That’s what makes it so odd.

4) Odd jobs. It was fun to remember some of these. One of my first was being one of those annoying 13 year olds that comes around to apartments and tries to convince folks that if they sign up to get the local paper, they’ll more than make up for the subscription costs just by clipping the Sunday coupons. Don’t hold it against me, I was thirteen – I didn’t know any better. Other jobs I’ve held: short order cook, construction worker, delivery driver, gas station attendant, substitute teacher, art gallery guard…if I racked my brain, I’d probably come up with several others.

5) I lived in Section Eight housing. I wasn’t on government assistance; this one actually ties into number four. I was a primary care attendant for a guy in a wheelchair for a few years while I worked my way through undergrad. Basically that means I got him up, cooked meals, drove him to the grocery store, helped him shop etc. He lived in Section 8, and one of the perks of the job was living in the spare bedroom for free.

I backtracked Scott’s tag and found the chain going backwards was: Infamy or Praise, Human Law, Freedom to Differ, The House of Commons and TechnoLlama. I’ll attempt to move it forward by tagging Blame the Drug War, Doors of Deception, LeftIndependent, LawNut, and The Adventures of Steanso.

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Jonathan Wilde at Catallarchy comments on a story documenting an Illinois man’s arrest for buying Claritin D, which contains pseudo ephedrine (PSE), because he purchased enough for both himself and his son to take one a day for a month.

Rene Sandoval, Director of the Quad Cities Metropolitan Enforcement Agency -- the agency that enforces the law -- says it's meant to catch meth makers, and does.

"We've seen a huge decline in methamphetamine labs," Sandoval said.

But even if you're not making meth, if you go over that limit -- of one maximum strength pill per day -- you will be arrested.

"Does it take drastic measures? Absolutely. Have we seen a positive result? Absolutely," Sandoval stressed.

Alright, so arresting this guy for picking up a few tablets of allergy medicine is clearly a positive result, but I thought I’d do some digging anyway. I went to the Illinios Attorney General’s website and found their MethNet webpage. After much pointing and clicking, I was able to find a .pdf document that explained to me that in Illinois “a consumer may buy no more than 7500 milligrams of ephedrine or PSE in a 30 day period”.

Well, that’s helpful I guess, but I still wouldn’t know how much Claritin D I am allowed to purchase at one time, so I went to the Claritin website but gave up on figuring out the exact dosage of psudo ephedrine from that. A few google searches later I found out that:

The newly approved Claritin-D 12 Hour contains 2.5 milligrams desloratadine and 120 milligrams pseudoephedrine. The recommended dosing would be twice a day.

OK. Let me run and get my calculator. The recommended dose is 240 milligrams a day, so if I wanted to purchase a 30 day supply (not to be taken necessarily in a month, but just to avoid going to the pharmacy every time I need this stuff) that puts me at 7200 mg, so I’m OK.

I guess where this guy earned his jail time was for purchasing some for his son too.

I know when my wife asks me to run to the store to pick up some over the counter medicine for her cold or whatever ails her, I usually rush out the door. Looks like next time I’ll have to do some internet research and crunch the numbers…

[Update - Bloggers also taking note of this story: Windy Pundit, Poliblog, Outside the Beltway, The Liberty Papers, Reconstitution, Neither Red nor Blue]

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One of the most positive aspects of practicing criminal law in Austin, Texas is the collegiate atmosphere shared among my defense brethren. The practice of criminal defense actually consists of enormous amounts of standing around in court time, waiting for something to happen. (I’ve previously posted on some of the other “not like TV” aspects of criminal defense.)

One way lawyers pass the time (as we wait for the lawyer in front of us to plead his case, or wait for the court probation officer or a client to complete paperwork, or wait to be let into the jail, etc.) is to talk about interesting current cases we have pending, and various legal issues raised by our clients’ cases.

I am appreciative of both the opportunity to bounce ideas off of other lawyers on my own cases, as well as the intellectual exercise of listening to someone else’s questions about an issue. Very often, talking to other lawyers about their cases will often lead to new ideas on how best to represent my own clients.

[Blog post idea brought to you by Life at the Bar and Idealawg, who have co-issued a challenge to blogging lawyers to compose posts beginning with “Lawyers appreciate…” The other part of their challenge is for those of us who do write such a post, to get 3 other law bloggers to do the same. I know there are at least a few of you out there, so, get started writing already…]

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Inter Alia – Tom Mighell’s internet research weblog has recently been listed as the featured blog of the week on the Texas State Bar’s lawyer blog page.

Employment Law Blog – Washington State attorney Jill Pugh discusses workplace law both from the perspective of the small business owner and that of the individual employee.

Massachusetts Personal Injury Law Blog – Boston attorney Chris Earley blogs on issues about car, bicycle and pedestrian accidents, dog bites, and medical malpractice.

Corporate and Securities Law Blog – Alex Simpson blogs on New York business and securities legal issues in New York.

Lawsagna – alternating layers of thoughts, tools, tricks, tips, and other ingredients for a successful learning experience in law school and beyond.

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Doug Grow of the Minneapolis Star Tribune in “Should Society Give Up On Its Worst Criminals?” argues against life without parole punishments, in this particular case, for a murder with aggravating circumstances. Interesting to me was a short paragraph on the cost of incarceration:

Figuring it costs $40,000 a year to house a prisoner and assuming that Holliday lives another 50 years, Minnesotans will pay $2 million to care just for Holliday.

Now I don’t expect any great outcry anytime soon for convicted murderers, based on Grow’s column, or really, from any other source. However, I’d like to see more articles about the failed War on Drugs include references to the economic costs to society, so I am encouraged to see these figures in this context as well.

As I’ve argued before,“how much it costs you the taxpayer” is one of the most persuasive (and shocking) arguments to the unthinking drug war supporters, and it may be the one that eventually turns us back towards sanity in our drug legislation.

(Hat Tip: Public Pretender)

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CNN reported that marijuana is the United States’ largest cash crop:

U.S. growers produce nearly $35 billion worth of marijuana annually, making the illegal drug the country's largest cash crop, bigger than corn and wheat combined, an advocate of medical marijuana use said in a study released Monday.

By comparison, the United States produced an average of nearly $23.3 billion worth of corn annually from 2003 to 2005, $17.6 billion worth of soybeans, $12.2 billion worth of hay, nearly $11.1 billion worth of vegetables and $7.4 billion worth of wheat, the report said.

"Marijuana has become a pervasive and ineradicable part of the economy of the United States," Gettman, a public policy analyst and former head of the National Organization for the Reform of Marijuana Laws, said. "The contribution of this market to the nation's gross domestic product is overlooked in the debate over effective control."

"Like all profitable agricultural crops marijuana adds resources and value to the economy," he added. "The focus of public policy should be how to effectively control this market through regulation and taxation in order to achieve immediate and realistic goals, such as reducing teenage access."

Of course, were marijuana decriminalized, regulated and taxed, the value would fall drastically. But it would still be a good source of taxable income for the government.

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OK. I guess we all were - at least those who are Web 2.0 participants – which includes commenting on blogs (**hint hint**), even if you don’t have one of your own. From the article:

It's a story about community and collaboration on a scale never seen before. It's about the cosmic compendium of knowledge Wikipedia and the million-channel people's network YouTube and the online metropolis MySpace. It's about the many wresting power from the few and helping one another for nothing and how that will not only change the world, but also change the way the world changes.

The tool that makes this possible is the World Wide Web. Not the Web that Tim Berners-Lee hacked together (15 years ago, according to Wikipedia) as a way for scientists to share research. It's not even the overhyped dotcom Web of the late 1990s. The new Web is a very different thing. It's a tool for bringing together the small contributions of millions of people and making them matter. Silicon Valley consultants call it Web 2.0, as if it were a new version of some old software. But it's really a revolution.

One of the joys I have already received this holiday season from blogging is that folks have emailed me questions about various criminal cases they have. So far, none of these folks have even been charged in areas of Texas where I practice, but I have still taken the time to email them back.

The internet is about sharing information, and while I anticipate that eventually the blog may drive some clients in my direction, my primary purpose is to educate folks out in the general public about how the “criminal justice system” works, and what we need to do change it.

Any rate, you’re at the very least a blog reader, by virtue of skipping this post, so congrats to you to on being named “Person of the Year 2006”. (Hat Tip: Kevin)

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Scott Henson writes about possible pending legislative attempts mandating reciprocal discovery in Texas, where presumably both sides, prosecution and defense lawyers, would have to turn over any evidence they have to each other. Instead, he suggests:

The reform needed here isn't "reciprocal discovery," but simply to mandate that all Texas prosecutors maintain an "open file" policy to let defense counsel view and make copies of any documents they deem relevant to their defense. The system works well where it's been implemented, and where it hasn't it's a source of constant grousing and wasted time for the already clogged courts.

I agree. They are several problems, right off the bat with the idea of reciprocal discovery. 

First, in jurisdictions where turning over Brady material is already a problem for the prosecutors, I’m not sure that legislating that they turn over “their whole file” will work either. Don’t get me wrong – I love the idea of it. I’m just pointing out that when the State can’t always be trusted to turn over exculpatory evidence, aren’t we going to have the same problems knowing that they’ve turned over the whole file?

At least it will make the “May I have a copy of the police report?” problem presumably go away.

But secondly, my fear is a spate of criminal defendants having to use the state and federal appeals process complaining that their lawyer didn’t turn over evidence “in a timely fashion” that should have been used in trial – and thus was barred from introducing it. That’s what the “reciprocal” part of reciprocal discovery means. I haven’t seen any proposed legislation, but it will probably include a provision disallowing evidence that was not turned over to the state.

Defendants should have almost no bars on the type of evidence they want to bring in to trial, whether it is exculpatory, mitigating, or really, of any quality. Scott is right. Legislation requiring the State to allow full defense access to the evidence is the only common sense solution.

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The blogosphere has exploded in the last year to 18 months with all sorts of niche lawyer blogs. One of these subtypes is law professors, blogging on, unsurprisingly, topics as wide as the law itself covers.

Willamette University professor Jeffrey Standen teaches sports law and blogs about it at The Sports Law Professor.

Cardozo Law School professor of cyberlaw and IP blogs at the eponymous Susan Crawford Blog.

New York University Law School Professor Daniel Shaviro talks about Tax policy (mostly) at Start Making Sense.

Now teaching at Williams College, Alan Hirsch blogs at both The Truth About False Confessions and Attorney’s Fees Law.

Former FCC Commissioner, and author of How to Talk Back to Your Television Set Nick Johnson blogs from the University of Iowa Law School at FromDC2Iowa.

From the same school, congrats to the recently tenured professor Tung Yin who blogs at The Yin Blog. (Here’s the SSRN link as well.)

Gregory Bowman, at Mississippi College of Law writes the Law Career Blog and his articles can be found at SSRN as well.

PrawfsBlawg – 6 full time bloggers, with multiple guest posting professors as well.

And, of course, with well over 50 professors blogging on over 30 blogs and counting is the Law Professors Blogs site.

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I suppose I can really only to speak to criminal defense in and around Austin, but the general answer to this question is going to be “No”. We need to dig a little deeper though.

Assuming, as the question does, that the person has never been arrested before, and is charged with a first time offense of DWI, Possession of Marijuana, Theft, or some other non assaultive offense, most judges will grant the defendant probation, even if they go to jury trial and lose. And most cases, fewer than five percent, end up going to jury trial; most criminal cases are wrapped up in some form of plea bargain, whether it involves being convicted, deferred probation, a reduction of charges, or even an agreed dismissal.

Unfortunately, there are too many attorneys who speak with potential clients in a manner that implies that jail is a likely outcome, if they do not accept the prosecutor’s offer of a conviction and probated (no jail) sentence. While it’s occasionally true that severe aggravating circumstances might make jail a likely scenario, my experience is that for first time offenders, that’s unusual.

Another thing I tell my clients in the initial meeting is that it’s the conviction itself that is often the real punishment, not the probation that a judge might give as a likely sentence. I’m not minimizing the time, effort, expense and hassle that probation may cause a person, but the truth is that most of my clients can stay out of trouble for a while, perform some community service, and if necessary, report once a month for a short visit with a probation officer.

But once the judge convicts you, that’s it. No Expunction, no destroying the records, no Motion for Non-Disclosure, no sealing the criminal history. And the conviction follows you around for the rest of your life. So while asking “Am I going to jail?” is a standard and reasonable question from someone facing the “criminal justice system” for the first time, perhaps “Is there anything I can do to get this off my record completely?” would be a more important one.

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The Drug Czar’s blog trumpets the effectiveness of Drug Court programs for felony level controlled substance defendants:

Treatment instead of Jail: How Drug Courts Save Lives: Drug courts save lives.  They rescue non-violent drug offenders from incarceration and a cycle of crime by providing them with court-supervised drug treatment. 

So, I assume they’ll be jumping on the decriminalization bandwagon anytime now…

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Ronald Miller of the Maryland Injury Law blog posts an example of an amusing but effective way that one lawyer handled a “slippery” witness.

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I received an email today asking me this question, and it’s a pretty simple one to answer:

Yes, if you are (a) entitled to expunge each of them separately and (b) if the arrests occurred in the same county.

The Texas expunction statute requires that we file your petition to expunge your arrest in the county where you were arrested.  So if, for example, you were arrested for Public Intoxication a long time ago in Austin, and got it dismissed (most commonly by completing a deferred disposition), and then were subsequently arrested for DWI, or Theft, of Marijuana, also in Austin, and it now too qualifies for expunction, we can file one petition.

This greatly reduces the legal fees required to expunge prior criminal history, and I always inquire as to whether a client has other arrests that we can seek to erase.

Unfortunately, if the arrests happened in different counties in Texas, then two different petitions must be filed, two different sets of court costs, and more in attorney’s fees. 

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Steven Kreytak writes an excellent piece in today’s Statesman highlighting a major flaw in the Travis County probation system. I’m sure there are similar issues all over the state, but I am personally familiar with the situation based on representing defendants arrested for possession of controlled substances in Austin. From Kreytak’s article:

Statistics show that hundreds of newly sentenced probationers in Travis County are waiting to get into court-ordered substance abuse treatment.

Judges send some offenders to county jails to wait for a treatment slot to open up, exacerbating the county's ongoing jail crowding problem. Others are released into the community to fight their addiction on their own.

The wait for treatment is usually several months, department officials said.

The waiting lists in Travis County are among the longest in the state and could hinder the probation department's ambitious overhaul of its practices.

Naturally, when a defendant is sentenced to probation for a drug offense, “treatment and counseling as recommended” is a condition of their supervision. This is so common in Austin that prosecutors simply write the acronym “TCAR” on their files as a part of their plea bargain recommendations. 

However, for felony charges, this often means that the defendant must “wait in jail until a bed opens up” in whatever treatment facility is “recommended”. The practical effect of this is to add long periods of incarceration to a defendant’s sentence, because not enough counseling options are available.

It’s a problem that only adequate funding can address, because, as the article points out, offenders released from jail immediately into community supervision (probation) often do not have their treatment needs met immediately, and re-offend prior to receiving counseling. This leads to an immediate filing of a Motion to Revoke Probation, with the defendant back in court.

The defense lawyer is then left to argue to the judge that the original sentence of prison should not be imposed, because the client is still in need of treatment. Of course, at this point, the judge is even more likely to leave the defendant in jail waiting treatment, which compounds our local jail overcrowding problems.

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Physician Ronald McIver’s thirty (30) year sentence for prescribing pain medication too “aggressively” to too many patients was upheld by the Fourth Circuit last week, and while reading the opinion, I thought footnotes 3 through 7 were a little odd:

   3 Oxycodone is a potent and addictive opioid that is classified as a Schedule II drug under the Controlled Substances Act. See 21 U.S.C. § 812 (2000); 21 C.F.R. § 1308.12(b)(1) (2004). It is marketed in instant-release form under trade names such as Roxicodone, Roxicet, OxyIR, and OxyFAST, and in a controlled- release form as OxyContin.

   4 Dilaudid is the trade name for a medication that contains hydromorphone, a potent and addictive opioid that is classified as a Schedule II narcotic. § 1308.12(b)(1).

   5 OxyContin is the trade name of a controlled-release form of oxycodone that can be crushed to circumvent the time-release mechanism and then taken either nasally or intravenously.

   6 Methadone is a potent and addictive synthetic opioid that is used to treat pain and addiction to other opioids. It is classified as a Schedule II narcotic. § 1308.12(b)(1).

   7 Morphine is one of the most powerful and addictive opioids. It is classified as a Schedule II narcotic. § 1308.12(b)(1).

Why did the court feel the need in a legal opinion to note this? Do they feel the need to justify this unreasonable sentence by emphasizing the potency and addictive nature of these drugs? Why the reference to “circumventing the time release mechanism” of OxyContin?

From the statement of facts from the appellant’s brief in this case:

The practice of pain management is varied and controversial. There is no standardization in the treatment of pain. There is a question among physicians over how aggressively to treat chronic pain patients. Most physicians agree on the use of high doses of opioids to treat terminal cancer patients. 

While the majority of physicians do not use opioids aggressively with non-terminal patients, there is a minority group of physicians who treat chronic pain more aggressively and with more opioids than the majority group. A physician’s prescribing practices should be dictated by his clinical experience.

The use of opioids(narcotics) is a legitimate treatment option.

All true. And it’s denied by no one that Dr. McIver was legally allowed to prescribe these medications, if he thought it in the best interest of his patients.

So the War on Drugs now includes federal prosecutors deciding what medications are legitimate for you to take, how much you may have, and how long to imprison your doctor if they think he got it wrong. And the appellate court thinks it can hoodwink the readers of its opinion by justifying the sentence, because the meds are “potent and possibly addictive”?

Downright scary…

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Florida Times-Union Tonyaa Weathersbee’s column “Decriminalizing Marijuana”, in part quoting Jerry Cameron of Law Enforcement Against Prohibition:

"We will never arrest our way out of this situation," Cameron said. "We will never be able to deal with our drug problem until we deal with our drug war."

This former drug fighter, in fact, is now a board member of Law Enforcement Against Prohibition, or LEAP, a national organization mostly of former and current law enforcement officials who believe that the best way to deal with the problem is through legalization and regulation.

Cameron makes sense.

Criminalizing drugs has kept the demand high, Cameron said, and suppliers use numerous means to get their product on the streets.

In many cases, this means violence and battles for territories. It also feeds other, more dangerous enterprises - such as illegal gun trafficking, carjackings and home invasion robberies.

It turns entire communities into prisons.

But by regulating drugs - in the same manner that alcohol and tobacco is regulated - at least the violence goes away. That alone would make some communities more livable.

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60 Minutes documented the story of Richard Paey (“How One Man's Quest For Pain Relief Landed Him In Jail”) earlier this year. The case itself is filled with legal and non-legal issues:

• Does possession of a certain amount of a substance establish “intent to deliver” or “trafficking” with no evidence of actual sale or delivery? 
• Did the prosecutor’s pre-trial offer of probation with no jail imply that the State believed the evidence of trafficking was weak at best? 
• Should possession of prescription medication without a valid prescription be punished as harshly (or more so) than possession of wholly illegal substances such as cocaine and heroin?
• Should it be a felony, or criminalized at all?

On Wednesday, Florida’s Second District Court of Appeals affirmed his sentence, rejecting his primary appellate issue that the ridiculously lengthy sentence violated the Eight Amendment’s prohibition against Cruel and unusual punishment.

The majority opinion contains a fairly accurate (if unfortunate) review of Eight Amendment caselaw, and correctly states the proposition that “Historically, the Eight Amendment has protected individuals with respect to the method of punishment, not the length of a period of incarceration.” [Emphasis Mine] The court basically concludes that it is the legislature’s job to determine the length of sentences for various drug offenses, and from the legal perspective, they are probably correct.

This emphasizes the need, then, that we who oppose these punishments ask our elected representatives to reform these laws. After all, don’t forget that you are paying for his incarceration.

The dissent is a better read than the majority, arguing we could use a dose of common sense mixed in with precedent:

I suggest that it is cruel for a man with an undisputed medical need for a substantial amount of daily medication management to go to prison for twenty-five years for using self-help means to obtain and amply supply himself with the medicine he needed.

I suggest it is cruel for government to treat a man whose motivation to offend sprang from urgent medical problems the same as it would treat a drug smuggler motivated to obtain personal wealth and power at the expense of the misery his enterprise brings to others.

I suggest that it is unusual, illogical, and unjust that Mr. Paey could conceivably go to prison for a longer stretch for peacefully but unlawfully purchasing 100 oxycodone pills from a pharmacist than had he robbed the pharmacist at knife point, stolen fifty oxycodone pills which he intended to sell to children waiting outside, and then stabbed the pharmacist.

Well said.  Florida needs to elect that man to the legislature, so he can start rewriting the laws.

(Hat Tip: Windy Pundit for quoting the dissent)

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I was involved in an email exchange today with someone who asked me what the collateral consequences of accepting a plea bargain that would result in a regular conviction probation with no jail time for possession of marijuana in Texas. (He was considering accepting an offer from a prosecutor in a county where he was allowed to represent himself pro se – a topic for another post, another day.)

I emailed him back three possible collateral consequences of his plea bargain that I could come up with off the top of my head (there are others, and sometimes they are case by case or fact-specific):

Driver’s license suspension for 180 days – turns out the prosecutor had told him about this one. This is standard in the criminal court, because most Texas County Court judges know this, they will actually include this in the sentencing paperwork. No one will probably help the defendant seek an occupational license though, which would keep him “street legal” for all the places he needs to go (not for all of the fun places, of course, but still, unless you want to become Amish, you need some sort of a drivers license to be able to go about your daily business nowadays).

Denial of Student Aid for Certain Periods of Time – the prosecutor hadn’t mentioned this one. I think it’s very likely that the prosecutor didn’t know or didn’t care about this, but anyrate, under current Texas law, no one is required to tell a defendant about this. Not even the judge in admonishing an unrepresented defendant. I previously posted about the statute and the relevant ineligibility for federal aid time periods.

Non U.S. citizens subject to deportation - (if charging instrument alleges possession of more than 30 grams) – this also didn’t apply to the fellow who emailed me, but it’s really one of my pet peeves about the current state of marijuana laws in Texas. Texas criminalizes possession of any usable amount less than two ounces (approximately 56 grams) of marijuana as a Class B misdemeanor. The charging instrument is an information (not an indictment) for this level of offense. Even if a foreign national possessed merely 1 gram of usable marijuana, if he pleads to the offense as charged, he subjects himself to being deported, based on the accusation of “less than two ounces”, because that amount could be more than 30 grams, which triggers the federal deportation element.

I’ll end by adding that these are just some of the possible draconian consequences of conviction of marijuana offenses in Texas. Fortunately, in Austin, the prosecutors often accept pre-trial diversion applications for first time marijuana offenders. Williamson County has set up a pre-trial diversion program as well too. More Texas counties need to follow suit.

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20 U.S.C. § 1091 entitled “Student Eligibility” contains a laundry list of federal regulations and requirements for receiving federal student aid for college. 

Subsection (r) was enacted in 1998 as part of the “Higher Education Amendments” (no pun intended, apparently). In 2006 the statute was rewritten (or clarified) to show that it is intended only to apply to students who are currently receiving federal financial aid.  Marijuana is classified as a controlled substance for purposes of this law.

The chart below (included in the statute itself) describes the time periods that students are ineligible for, if convicted of possession of a controlled substance:

20 U.S.C. § 1091 (r) Suspension of eligibility for drug-related offenses

(1) In general

A student who has been convicted of any offense under any Federal or State law involving the possession or sale of a controlled substance shall not be eligible to receive any grant, loan, or work assistance under this subchapter and part C of subchapter I of chapter 34 of title 42 during the period beginning on the date of such conviction and ending after the interval specified in the following table:

(2) Rehabilitation

A student whose eligibility has been suspended under paragraph (1) may resume eligibility before the end of the ineligibility period determined under such paragraph if—

    (A) the student satisfactorily completes a drug rehabilitation program that—

        (i) complies with such criteria as the Secretary shall prescribe in regulations for purposes of this paragraph; and

        (ii) includes two unannounced drug tests; or

        (B) the conviction is reversed, set aside, or otherwise rendered nugatory.

The Department of Education has also released a Student Aid Eligibilty Worksheet for folks to use to see whether or not they are eligible for Federal Aid based on their criminal history.

I tell all of my Travis County clients attending one of the many universities and colleges in Austin about these provisions, and why it is even more imperative that we find a creative way (such as pre-trial diversion) to try to get their case dismissed, if at all possible.  Fortunately, I've generally found the prosecutors in Austin to be at least willing to listen to my equitable arguments as to why my client should not be convicted of a simple possession case (yes, even if they may in fact be guilty).

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In an Austin American Statesman article today titled “A quick solution to prison overcrowding?”, and subtitled “Statistics show prisons house thousands of inmates who are good candidates for parole”,Texas Senate Criminal Justice Committee Chairman John Whitmire is quoted on the lack of funding for inmates to complete drug and alcohol programs pre-release:

"There are long waiting lists for those programs, so people sit in prison much longer than they should," Whitmire said. "We have 900 or so who are approved for parole but who have not been paroled because the programs they have to complete as a condition for parole are not available."

Whitmire said he is convinced that the large number of parole-ready trusties is a case of prison officials not wanting to lose valuable help. Outside trusties work as porters, help in offices and do field and community service labor. Inside minimum-security prisoners serve as cooks and janitors and do laundry and other chores.

"I'm convinced the reason we're not paroling more of these people is that they're the workers," he said. "If they're a low-enough risk that they are allowed outside without close supervision, why not parole them and put them on a monitoring bracelet, and open up that bed for someone else?"

"Based on these numbers, I think we should take a look at every bed we have, and who is in it, before we build any more," Whitmire said.

Taxpayers spending more on incarceration than they could on proper rehabilitation programs is, unfortunately, nothing new.  But inmates not released because the prison industry wants to use more labor? It’s getting downright Dickensian out there…

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The U.S. Supreme Court denied cert in Angelos v. U.S. today, effectively affirming this defendant’s 55 year sentence for being set up by the government to sell marijuana, and, according to the snitch who was deal-making for his own liberty, carried a gun in an ankle holster.

Three controlled buys of 8 ounces of marijuana, and some not-so-reliable testimony about whether you carried a weapon (but did not use or exhibit it) equals fifty five years in prison on this particular occasion.

Originally offered sixteen years in the federal penitentiary if he plead guilty to the offense, Angelos turned the deal down because he insisted that he had not carried the weapon. (That’s why the snitch testimony is an important factor here – there’s good reason to disbelieve any paid testimony of a Government witness.)

By exercising his constitutional right to dispute this aggravating factor, Angelos rolled the dice and lost in a big way. I’m sure this was in part because the original 16 year prison offer was ridiculously high, even if he were guilty exactly as accused.

A defendant indicted on a state charge in Austin, Texas under the same set of facts, would likely be facing a State Jail Felony charge, where his maximum punishment would be five years (day-for-day, no parole) in a state jail facility. I’m guessing, obviously, but the offer would probably be for probation. (There is some chance a Travis County prosecutor might try to enhance it to a Third Degree Felony, based on the weapon, which would double the maximum to ten years, but then leave open a possibility of paroling from TDCJ. Again, I think probation would be a likely outcome.)

And the stark contrast with the punishment range under Texas rather than Federal law is even more surprising, given that Texas has notoriously high punishment ranges for marijuana and controlled substance offenses. In most states, a defendant in Angelos’ situation would be facing substantially less time than here in Texas.

For readers that have gotten this far, but are still reacting to this story with a “do the crime – do the time – and to heck with him” mentality?... Please read this Progressive article humanizing Weldon Angelos, then get back to me.

You have to know something is very wrong, when the sentencing judge decries the penalty he must give a defendant, and goes so far as to list much lower maximum sentences available in other types of federal cases:

Hijacking an airplane: 25 years

Second-degree murder: 14 years

Kidnapping: 13 years

Rape of a 10-year-old: 11 years

Remember, we are talking about 24 ounces of marijuana here…

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While extolling the virtues of legislation increasing mandatory minimum sentences for firearms crimes in Canada, Edmonton Sun columnist Mindelle Jacobs observes:

If we wanted to engineer an immediate, dramatic drop in crime, we'd legalize drugs, demolishing the profit motive. For the most part, it's not poor people gunning each other down in Alberta's red-hot economy - it's greedy, rich punks fighting over drug turf.

In a paper on our failed drug war a few years ago, the Fraser Institute wondered why we spend so much money on drug prohibition in an effort to save a small hardcore group of drug users from themselves.

We should be asking ourselves the same thing. It is drugs - not prohibition - that boost crime, the institute noted. If we were smart, we'd divert the money we're spending on drug prohibition into treatment programs for addicts.

Some of her conclusions, particularly regarding prohibition not being the cause of violence are wrong, of course, and I can’t say that I favor increasing minimum sentences in America, but she’s partly correct about decriminalization reducing the profit motive, and therefore being a good reason to reform current drug policy.

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Mark Katz posts about a recent successful medical marijuana defense case, based on these provisions in Maryland’s marijuana statute:

(i) In a prosecution for the use or possession of marijuana, the defendant may introduce and the court shall consider as a mitigating factor any evidence of medical necessity.

(ii) Notwithstanding paragraph (2) of this subsection, if the court finds that the person used or possessed marijuana because of medical necessity, on conviction of a violation of this section, the maximum penalty that the court may impose on the person is a fine not exceeding $100." Md. Code, Crim. Law art. § 5-601(c)(3).

In Texas, there is no equivalent protection for legitimate marijuana patients. Having written recently about whether drug policy reformers should press for complete victory, or possibly accept incremental change in our laws, I am sensitive to the need for fighting the drug warriors on multiple fronts.

The last Texas legislature declined to reduce the criminalization of less than an ounce of marijuana to a Class C offense (the equivalent of a speeding ticket). I do somewhat fear that if Texas passed a medical marijuana affirmative defense, as Maryland has, that it might slow down the total-decriminalization process.

Also, Katz’ post points out the financial cost to the patient in mounting such a defense:

Mounting the best medical marijuana defense will ordinarily be costly, calling for the testimony or written opinion of the defendant's treating physician (or an evaluating physician if the defendant had no personal physician), and sometimes the testimony or written opinion of a medical marijuana expert if the treating physician lacks sufficient knowledge about marijuana's medicinal relevance to the defendant, or refuses to provide a medical marijuana opinion.

So, would an affirmative defense for medical marijuana patients in Texas be a step in the right direction?

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From the Drug Czar’s blog “World AIDS Day 2006” post yesterday:

Behaviors associated with drug abuse are among the main factors in the spread of HIV infection in the United States.

I'm sure that's true.  But see, from the same blog two weeks ago under “What’s Wrong With Needle Exchange Programs”:

The primary burdens for any public health intervention are that they produce the effect that they intended to produce, that they do not introduce harmful unintended consequences, and that they are demonstrably superior to other interventions that could produce better outcomes.  The existing evidence cannot support the claim that the distribution of needles to enable continued drug injection behavior can meet these criteria. 

I can’t do a better job than the Aids and Rights blog already has of debunking this second claim. I’ll ask this though… who do you trust more on this issue?

The ideologically driven, scientifically ignorant, highly politicized Office of National Drug Policy Control or these other listed organizations who all support Needle Exchange programs?

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This issue has to be on the low end of problems facing the Texas criminal justice system right now, but reading Wretched of the Earth’s example of the State forcing a defendant to jury trial brought it to mind…

Of course the defendant has the right to a jury trial for any criminal charge in Texas, and I know that the system in Austin would probably be better for the accused in general if more lawyers at least urged their clients to exercise that option. Far too many cases are plead out when it is not in the defendant’s best interest to do so.

What I’m talking about is the situation where a defendant wants a Trial by Court (aka judge trial), but the State “refuses to waive jury”. What are some reasons the State might do that? Primarily for two reasons

They believe they have a tactical advantage in front of a jury. Take the example of a felony DWI in Texas, where the jury will hear about at least two prior convictions for DWI. Yes, the jury is instructed not to consider the prior convictions as evidence that the defendant committed the offense on this particular occasion, but only for “jurisdictional purposes”. (I’ll post about that legal fiction, and how it unduly prejudices the defendant in another post sometime.) Many times I believe the judges in Austin would be able to not improperly factor this into considering whether the state has proven my client guilty of DWI this time, while juries are often incapable of separating the two.

They want to stretch the case out longer.  That’s right. As in Wretched’s example, the State might know it has no case, but doesn’t want to dismiss. Jury Trials are usually reset several times before the case is old enough to be reached, while Trials Before the Court very often go the first or second time they are set. So to punish the defendant (who I’ll add, in these situations, the prosecutors believe actually is guilty, they just can’t prove it), they make him come to court again and again until his case is number one on the jury docket.

The State’s Reason Number One can be condensed into the word “cheating” – or perhaps just gaming the system to their advantage. Reason Number Two falls squarely under the “waste of taxpayer’s money” category.

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