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

Annonymous commenter on Doug Berman’s post “The safety valve solution to mandatory minimums”:

Isn’t part, and an important part, of the real story behind the motivation of law enforcement figures who so obdurately support mandatory minimums is that it increases their ability to coerce plea bargains?

Seemingly absent from the discussion is the fact that law enforcement supports and indeed requests massively below guideline sentences for its pleader-cooperators. The response that this is a statutory-based departure based on cooperation doesn’t seem particularly compelling given that in so many plea bargains a large down-departure is built into the deal by the prosecutors dropping many charges before settling on the claim(s) to be plead.

This disparity that law enforcement can count on, between the mandatory sentences and what pleaders can expect, gives their already monstrous-plea bargaining power some serious additional oomph.

Bingo.

And to be fair, not all law enforcement supports mandatory minimums.

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Texas Governor Rick Perry, giving advice last Friday to one of the largest graduating classes of new DPS troopers ever:

You might pay heed to a hunch and check a truck more closely the way one of your fellow troopers recently did…and stopped $3 million worth of cocaine from reaching our communities.

Don’t forget to make a pretext stop first though… that ‘hunch’ may not hold up for reasonable suspicion to detain.

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A Harris County Lawyer (yes, that’s the name – it’s an anonymous blogger – probably a prosecutor in the Harris County D.A.’s Office) objects to the ‘fear mongering” on fellow defense lawyer Mark Bennett’s blog:

Okay, I don't know how long this has been up on Bennett's website, but I just noticed this blurb he has in the upper right-hand corner:

Defending People is about protecting the people, one at a time, from the only viable threat to their liberty: their government.

Um, isn't he the one who has been blasting prosecutors for instilling fear in people?

I plan to fully investigate this, but right now, I'm hiding under my covers because the government is trying to get me.

This actually has to do with AHCL’s unwavering support of Kelly Siegler for Harris County DA, and refers to Bennett’s post about Siegler’s fearmongering.

But, while AHCL is on the subject, what’s wrong with Mark’s tag line?

Murderers (some would argue the State included) can take your life.

Thieves can take your property.

You can forfeit your own dignity.

But who besides the government can take your liberty?

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Via Huffington Post, the first sentence of a new post by the Chief of Congressional & Public Affairs for the U.S. Drug Enforcement Administration:

The drug trade never fails to surprise those of us at the Drug Enforcement Administration (DEA).

You mean, you keep touting your successes (‘Major Heroin/Cocaine/Marijuana Bust’)… and, yet, nothing ever changes?

Are you really still surprised?

[As always: the obligatory ‘Can’t ever beat him to the punch on a Drug War story’ Hat Tip to Pete]

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Reading Rob La Gatta’s Q&A with Houston Chronicle blogger Mary Flood made me skim her “criminal law” archives, and tada, I had just plain missed this nugget.

Now I’ve been thinking for a while about starting an archive tag called “Your Tax Dollars At Work”. (And, no, it won’t just be identical to every single War on Drugs post – although, it could be.) Just hadn’t gotten around to it, frankly.

But this story is the final straw. From the blog post titled “Stopping people leaving the US to detain & deport them”:

On the one hand -- it seems wasteful for our government to be pulling people off planes at Bush Intercontinental to pay to detain them, prosecute them and then to send them exactly where they were already going.

But the government says these folks have all been deported before and they need the felony conviction to take the law seriously, and hopefully not return here illegally again.

Houston-based federal public defenders say it's a colossal waste of time and taxpayers money to pay the nearly $70 a day for several months to hold these people, prosecute them for entering the U.S. illegally and pay to send them where they were already headed.

``What's silly about this is that they are on their way home. They have gotten the message that they shouldn't be here,'' said Houston's U.S. Federal Public Defender Marjorie Meyers. ``It's not cost-effective.''

But Houston's U.S. Attorney Don DeGabrielle notes the people they are prosecuting are repeat violators of U.S. immigration laws and that it's not only necessary but efficient to stop them and prosecute them.

``We had already expended some time, effort and money before to institute deportation,'' said DeGabrielle. He said to allow these people to come back into the country without proper permission and then just let them leave would minimize what the government is trying to accomplish. ``We feel it's definitely worth the resources to hold these people accountable,'' DeGabrielle said. [Emphasis Added]

OK. ‘Illegal reentry’ is a prosecutable federal offense - I get that. Like many offenses, the punishment range is arguably over criminalized, but it is a crime. A federal crime.

But, um, how do I put this? From the emboldened section in the snippet, the official position seems to be: We’ve already spent some of your hard earned tax dollars. Quick, let’s spend some more… before it’s too late and we never get the chance.

Ladies and Gentlemen… welcome to the newest section of Austin Criminal Defense Lawyer: “Your Tax Dollars At Work”. I’ll try to spend some time going back and retagging previous appropriate posts.

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Larry King interviewed the apoplectic comedian Lewis Black tonight on CNN (30 minutes past the end of the broadcast and it’s still not linkable – is this the internet age or not? No seriously, I’ll try to link to it when it’s available.)

Last question from Larry was about whether or not the rumor was true: had Black started a blog? Absolutely not. “I refuse to blog,” said Black, continuing:

…just because you can type on a screen doesn’t give you legitimacy as an authority on anything.

King: Anyone can blog, right? [Typically sycophantic, notice how Larry turns from being willing to plug Black’s hypothetical new non-existent blog to immediately bashing the concept for blogging itself – based, of course, on his guest’s answer.]

Black: Everybody does! [Minor epileptic fit ensues.] …you used to have to put up a degree!

He’s right of course. 

You’re going to have a hard time blogging regularly about a subject that you don’t know anything about. And while you know everything about your own personal life, and are therefore immediately the world’s foremost expert on everything relevant to your own personal diary-type blog, that’s not true for ‘professional’ blogging.

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A former police officer, county Sheriff, and corrections officer asked Simple Justice a simple question: “When does a felon become an ex-felon? Is even a low grade nonviolent felony conviction a life sentence? And, if it is, should it be?” To which he replied, in part:

Mr. Woodward is old enough to remember when we used to say that a person who completed his sentence had "paid his debt to society."  How quaint that sounds today, like some line by Atticus Finch to Scout.  When is the last time (other than here) that you heard someone use this archaic phrase? 

Actually, Scott, I hear it all the time, at least, if you allow me to tweak the question.  I hear all about “I’ve paid my debt to society” or something similar, when I start explaining Texas’ enhancement provisions to clients. They want to know about the “constitutionality” of holding past criminal convictions against them, you know… the ones for which they have already “done their time”.

Typically, at least in Texas, enhanced misdemeanor offenses fall into one of a few general categories:

• DWI: Class B Misdemeanor, Class A Misdemeanor, then 3rd Degree Felony
• Assault Family Violence: Class A Misdemeanor, 3rd Degree Felony
• Theft: Any Class of felony or misdemeanor based on the combined value of the items alleged stolen, until finally the 3rd theft becomes a State Jail Felony. 

For some reason, folks don’t seem to get enhanced on Theft charges until they’ve hit their 10th or more; but DWIs and Assaults are almost always enhanced, at least in Travis County. Seems like most clients are either of the first time variety, or the “Wow, you’ve really got a rap sheet” variety. I know that can’t be actually true (how did anyone ever get those convictions numbers two through nine?) but I don’t remember the last time I had a third or fourth “only” type theft client.

Of course, Texas also has Felony enhancement provisions too. Probably better left for another post, but suffice it to say, those DWIs and Assault charges can be raised to higher charges still, if the defendant has prior pen trips.

So, yeah, I hear about that quaint concept of “not holding my priors against me”. But as for everyone else, it’s a forgotten concept.

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Houston criminal defense lawyer Randall Kallinen posted the link to this story on the newly formed Texas defense lawyers listserv:

Omaha, Nebraska (KMTV) - A 10-year-old Nebraska girl is slowly losing her life to brain cancer. She has one wish will put her to ease: to see her dad. But it may not happen.

The little girl's name is Jayci Yaeger.

"The tumors are growing and hemorrhaging and right now nothing there's nothing they can do for here, just keep her comfortable," says Vonda Yaeger, Jayci's mother.

Cancerous brain tumors have taken over, and Jayci moved into a Lincoln, Nebraska hospice center this week. Her mother can only watch as her daughter slowly disappears--a girl who just six months ago was vibrant and energetic.

"She needs to be where she can be peaceful and happy and not in pain," says Vonda.

However, Jayci isn't ready to go just yet. She's got one more thing to do before she dies. Hug her daddy.

"She's very scared," says Vonda. "I think she's holding on for her father."

The thing is, Jason Yaeger is sitting in a federal minimum security prison camp in South Dakota serving five and a half years for a drug conviction. He's got one year left.

Jason and the Yaeger family have appealed many times to the warden for a 30-day supervised release. He's been denied, and they say the prison tells them the circumstances are not "extraordinary."

Jason is scheduled to be released to a local halfway house in August, but doctors and her family believe by then it will be too late. Now, they're just waiting, hoping something will change.

A quick skimming of the comments section, and I only totaled 3 out of 98 comments - so far - that were of the “DO THE TIME DO THE CRIME” variety. (Sorry for all the caps, readers, but I thought it was appropriate even while paraphrasing to keep the anonymous idiot internet commenter code of always yelling.)

So, does that mean there’s roughly three percent of the population that wants to hammer your client on a drug case, and ninety seven percent that are at least capable of compassion for a non violent offense? In Texas, where we have the option of jury punishment, even for the slam dunk guilty defendants, it’s something to think about…

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For the Iraq War Blogstorm project, some quick thoughts on how the War on Drugs is like the War in Iraq:

Both Wars

• Are costing the American taxpayer billions and billions of dollars. Trillions if the full economic costs are calculated.
• Have huge ‘cottage’ industries supporting them, and someone is getting rich off of them.
• Cost American lives. And foreign lives, of course – for those who care.
• Are premised on lies.
• Depend on ignorance. The more people educate themselves about the truth, and find out what’s really going on, the less they support both wars.
• Allow most politicians to spout sound bites and platitudes (full of sound and fury, and signifying, well…)
• Are the only 2 things Ron Paul is 100% right about. But, he’s 100% correct on 2 major issues where most pols are only running approximately 0-25%.
• Have blogs devoted to them. Most of these blogs are anti-War blogs (or is it just that those are the ones I read?)

That was off the top of my head and took about two minutes. Only five minutes until the anniversary is over, so this post is done. Depressing how similar they really are. Feel free to add more suggestions in the comments section. I’ve probably covered only 10% of the available ideas on the subject.

And, by the way, the major difference? Only one of them is a real war. The ‘War on Drugs’ is not a war – at least it’s not a war on drugs.

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• Programs for the elderly are being slashed in Maine.
• Government jobs are being eliminated in New Jersey.
• Prison construction has been put off in Virginia.
• Some schools in California will end their music programs.

I bulleted the first four sentences of a New York Times article by Jennifer Steinhauer, “As the Economy Falters, So Do State Budgets,” because one of the lines jumped out at me as substantially different than the others. [Perhaps one of our Republican brethren in the criminal law blogosphere might cheer number 2, government jobs being eliminated. I’d preemptively answer that numbers one and four are merely subsets of number two – and until we know which jobs are eliminated, we should wait to cheer.]

So, of course, I’m talking about number three: prison reconstruction has been halted. Unfortunately, while the article goes on to talk about Virginia’s budget crisis, it doesn’t tell us any more about the ‘prison crisis’ the state is facing. Fair guess though that prisons are ridiculously expensive to build, and the Old Dominion has run out of cash.

I’m sure we liberal Times readers are supposed to gasp that all four worthy causes mentioned are being hijacked by the sinking economy. Hopefully other readers will have the same reaction I did.

I’ve argued repeatedly that those who want to evangelize against the War on Drugs will find more converts with the economic argument than any other. When people realize the cost to their own wallets this ‘War’ is costing them personally, that’s when we can look for some real change.

Lastly, I never thought I’d be a fan of any ‘Starve the Beast’ philosophy. It’s always struck me as too cynical for its own good – never mind doing away with a bunch of programs I support. You know, helping the elderly and teaching music in public schools. But maybe the State legislatures can start taking a hard look at their own Three Strikes laws for drug offenders, and figure out some ways to start saving.

Here’s an easy one: no enhancements for possession. I don’t care how many previous pen trips you have – you are never subject to a higher penalty for drug offenses just because you have previous felony convictions. I’d publish a rough estimate of the savings, but my home calculator only goes up to 10 digits.

See Also

• Mass Incarceration in the United States: At What Cost
• The War on Drugs is the New New Deal

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Warning: Somewhere between 95-99% off topic post coming up.

I get emails from various folks asking for backlinks to their blogs on a semi-regular basis – not that I mind them, if you are pointing me to something with good content, I may subscribe by way of RSS, and if you have good content relevant to mine, I will probably point to your posts in an upcoming post of mine.

By the same token, if you have no real original content – and the people I’m talking about know who they don’t – please refrain from spamming me.

In the meantime, and definitely off topic, or at least not very criminal defense related comes the March 19th Iraq War Blogswarm project. Those looking for backlinks to their blogs need merely write a post this Wednesday and they will get that oh-so-coveted backlink. (The page is fairly new, and thus shows no Google PR for now, for those who care about such things, but I think the fact that it’s been up one month and already shows 863 backlinks means it’ll have some Google juice.)

The blog authors even give folks ideas about what to write:

Here are some things you might want to consider if you are having difficulty making up your mind (on what to post about):

• Attend an anti-war event and report on it.

• Interview military families and veterans.
• NEW IDEA: Blog reactions to Pacifica's Live Radio Coverage of the Winter Soldier testimony by Iraq Vets would be of great interest. Coverage from the event in Washington, DC would be great too. This event deserves all the coverage it can possibly get.
• Examine current plans and the rather shadowy oil laws as well as long term military bases.
• Compare and contrast candidates stated intentions on what they claim they will do with their records.
• Publicize online action alerts by pro-peace organizations.

• Discuss the economic impacts of the war on people in Iraq and/or western countries.
• Discuss the casualties on both sides.
• Explore issues and impacts often ignored by most media outlets.
• Analyze war propaganda.

I’ve got my own ideas on how to make my post relevant to my ‘niche’ – but I’m going to keep that to myself, for now.

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Still in DC, and my sister in law (who has been an excellent host this week) notices this AP story reproduced in the Washington Post. 

“Two years for a beating and stabbing attack on a homeless man?” she exclaims, looking to me for a reasonable explanation. When you’re the defense lawyer in the family, you get these sorts of inquiries.

In Texas, we don’t have degrees of murder and manslaughter, as most other states do, so I don’t know what constitutes attempted second degree murder in Florida. Not many details in the story, but it sounds like something that would be prosecuted in Texas as Aggravated Assault and/or Attempted Murder, both 3g offenses and second degree felonies with punishment ranges of 2-20 years.

“Guess they gotta keep those prison beds open for marijuana and drug offenders,” is the best I can reply.

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In researching an upcoming post about Brady violations in Jeffrey Skilling’s trial, I ran across an interesting tidbit.

An MBA student at Cornell named Kristine De Bacco posted a review of sorts of lead Enron prosecutor John Hueston’s speech to her school, where he brags about what a difficult job he had in obtaining the convictions…not because public sentiment was with the defendants, but because it was against them:

[I]n fact, prior to the commencement of the trial, Lay and Skilling had already been convicted in the court of public opinion. To the average person on the street, their guilt seemed a foregone conclusion.

From Mr. Hueston's perspective, however, this made the job of the Enron prosecutors much more difficult. They were expected to win.

Hogwash. Any federal or state prosecutor loves the presumption of guilt. Simply a case of a guy trying to convince folks out there that his job was harder than it really was.

It’s disappointing that no critical thought is put into analyzing this assertion from the former prosecutor. How is it exactly that going into trial with a jury pool that already believes the Government’s case before they have heard it could be harmful to the prosecution?

There may be more pressure on a prosecutor when he is “expected to win”; but when that expectation arises from a playing field tilted in his favor, it’s not a disadvantage.

For example, it might be embarrassing for a number one seed in the NCAA’s to lose in the first round to a small school overmatched opponent that barely scraped their way into the tourney, but it doesn’t change them from favorite to underdog. (And if it did, wouldn’t the 16th seed suddenly become “expected to win”… rinse and repeat?)

Another excerpt about the speech:

Mr. Hueston and his team had been especially concerned that there were few, if any, documents linking Lay and Skilling directly to the fraud - no perfect "smoking gun" to wave in front of the jury.

So, in order to establish guilt beyond a reasonable doubt, Mr. Hueston and his team employed a number of alternate strategies.

Yeah? Looks like one of those alternate strategies may have involved deliberately not turning over impeachment material from the original Fastow interview notes, and either minimizing or deleting them from the 302s turned over to the defense.

More on this coming soon.

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David Terrell has moved “In the Moment” to a new address, while keeping the name of the blog. Robert Guest starts over as “Dallas Criminal Defense Lawyer”. (Given the lack of originality of my own blog’s name, I suppose am not allowed to join the chorus of blawgers who lament Guest’s abandonment of “I Was The State”.)

Both of these guys are must-subscribes in any criminal defense lawyer’s RSS reader, so make sure to update accordingly.

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So Congress had its first closed session in 25 years last night, and the poli-blogs are a buzzing.

I happen to be in D.C. the latter half of this week, and the focus on how Congress works reminded me of a recent series of emails. On Tuesday, since I was coming to Washington the next day, I sent an old college buddy who works for Congress an email asking if he’d want to meet up at some point.

He replied, in part, “I might be able to skip out a little early Friday if we are not in session or go on the Capitol tour if you take one.” I wrote back:

Um, I guess this is a curiosity question more than anything else, but…

It’s Tuesday and you don’t know whether Congress will be in session on Friday?  Geeze, what are we paying these guys for?  Do they get up every morning and do a big conference call at 7 a.m. to ask themselves whether to show up on a day by day basis?

(I’m sure my question reveals my ignorance about the subject.)

Jamie

The answer?

Yep, no idea. Depends on how much work gets done. They are not usually in on Fridays, but since they are on the eve of a two week recess (or district work period as some prefer), they can’t leave before doing some work. The threat of a Friday work day usually helps them finish on Thursday – (kind of like telling kids they can’t go out and play until they finish their homework.)

So, members of Congress are just like you and me -- instead of working late on Friday to get things done, they just decide not to work on Friday at all before taking a two week vacation.

I guess I’ll find out later today whether that closed session last night wrapped everything up, or whether it pushed their schedule back, forcing them to actually work the whole 5 days this week.

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Part II of Naming Names and Plagiarism in Criminal Defense Blogs

In Part I we covered lawyers who cut and paste news articles without attribution, and without any thought to the potential effects on some other criminal defense lawyer’s client.

Windy Pundit covered part II, sploggers, better than I could in a comment on a Simple Justice post. (But it wouldn’t be much of a post if I didn’t add some of my own thoughts anyway.)

A few background details. Blogging on Blogger is free. TypePad is cheap. And, aside from the hosting cost if you put it on a custom URL, WordPress is also free and it’s fancier than Blogger; but it requires a modicum of computer know how, in terms of installing the software, etc. (The use of the word ‘modicum’ is not meant in a derogatory fashion – I’ve never set up a WordPress blog, and I might or might not be able to do so easily.)

The point is, setting up a blog is somewhere between inexpensive and free.

Then we add internet juggernaut Google to the mix. Google makes the bulk of its money from the sponsored results section that appears above most internet searches. The advertising program is called AdWords. Every time someone googles a phrase and clicks on the sponsored result, Google gets paid. If there are multiple folks bidding for higher placement, Google gets paid even more.

To increase the number of people who are exposed to AdWords, Google implemented the AdSense program. Through AdSense, anyone can place AdWords on their site, and receive a portion of the click-through price from Google. (I think it’s 5 or 10%, but I don’t feel like looking it up.)

Google owns the Blogger platform – so it made it easy for users to place AdSense ads on that free platform.

The result was predictable. Folks from literally all over the world starting setting up blogs for the sole purpose of earning a small percentage of the advertising revenue. And a new word was born as well: splogs – short for spam blogs.

I am somewhat familiar with this phenomenon by chance. A large portion of my practice involves representing folks charged with DWI, and I practice in Austin, Texas. In September of 2006, a year and a half ago now, an article was written on a ‘how to make money by blogging’ blog, entitled, “Highest Paying Adsense Keyword: DWI Austin”.

At that time, advertisers in this market were bidding as high as $82.95 per click for anyone who was searching google with those two words. (Looks like it has since fallen to the uber-reasonable rate of merely $51.00, while the mesothelioma lawyers have taken over most of the top 20 spots.)

This all happened because a bidding war broke out between DWI lawyers in Austin who all decided to advertise on Google, roughly at about the same time. Then many of them decided they wanted to be number one. Simple economics tells us this drove the bidding price up, up and away.

Since I also author a ‘DWI Blog’ along with this one, sploggers started cutting and pasting my articles on their money making blogs. Didn’t matter that I don’t advertise; my site comes up pretty high for a variety of searches using the important (i.e., high paying) keywords.

Robert Guest, of the newly minted Dallas Criminal Defense Lawyer Blog, ran across a blog that had copied some of my posts wholesale, and alerted me to it in the comment section of one of my posts. Nothing I can do about it.

Except call the sploggers what they are: plagiarists.

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Houston defense attorney Mark Bennett is understandably outraged to see that fellow criminal law blogger David Finn has reproduced the Department of Justice’s press release about Mark’s client as his own work. Mark’s concern, as always, is for his own client, who thanks to this “Federal Criminal Defense Lawyer” has his name besmirched before a jury can even be selected. 

Others might consider it unseemly to not even attribute the DOJ in the post, not to link to the original, not even to indent someone else’s words as is customary in blogging etiquette. No, this is all under the banner of the “Personal Online Journal of David Finn”.

Meanwhile New York defense lawyer Scott Greenfield recently groused about his original writings being bastardized as unintelligible garbage in random blogs. He first thought the culprit was the blogging platform WordPress, but Windy Pundit cleared up the misunderstanding in a comment. Turns out it was just another splog.

These two instances are related, and they illustrate the 2 types of bad and/or useless blogs in the criminal blawgosphere:

1. Lawyers that don’t know or understand the purpose of blogging.
2. Folks trying to monetize a cheap/free site quickly, using Google’s AdSense program.

Category Number One: the Lawyers.

These are lawyers who have contacted (or been contacted by) some Search Engine Optimization genius, who tells them that blogs are the latest thing. 

“It’s all about content. Frequently changing and updating content on your site. That’s what Google values the most. That’s what a blog is,” says our easily imaginable SEO expert.

So the web designer sets up a ‘blog’ for the defense lawyer, and tells him, “Take snippets from the local news and post regularly.” Soemtimes the webmeister advises the potential client to “comment on the story”.

Perhaps that saves Finn from the plagiarism charge. Referring, apparently, to federal indictments relating to mortgage fraud, he prefaces the cut-and-paste with the pithy phrase, “Expect to see more of this in 2008”. So at least that’s original.

But, ignoring Bennett’s point about criminal defense lawyers doing the government’s dirty work for the, I still don’t get it. This blog is clearly being used as a marketing tool and exists for that purpose alone. There’s no insight or commentary. Nothing. 

The part that confuses me is this: would someone being investigated or perhaps already indicted by the Federal Government run across this site? Potentially yes. Would they say to themselves, what, I don’t know, “I want to hire the guy who repeats the federal prosecutor’s propaganda? Give me the guy who names defendants in his blog.”? 

I would think not.  So, never mind the ethics of plagiarism, how effective a marketing tool could it be? 

Category Number Two: the sploggers.

Written after the fact, and now contained in a separate post.

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…doesn’t it have to be the Golden Rule?

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Via To The People comes this story out of the UK:

A policeman alerted hundreds of families to the danger-drug Strawberry Meth - despite the fact it does not exist.

Pupils and parents at 80 schools in Oxfordshire were warned of the possible risks of the fruit-flavoured drug, also known as Strawberry Quick, by the unwitting officer.

The spurious alert came after the officer sent an email via a special system connecting police and schools without checking it with colleagues.

So it turns out there’s no such thing as Strawberry Meth – it’s an urban myth. Officer, you can always check Snopes.com first before forwarding spam and bogus emails. 

Of course, British policeman aren’t the only ones spouting false information and nonsense about the War on Drugs. In the States we have something called ‘the Senate’ that serves that purpose.

From last April’s press release from Senators Feinstein and Grassley, touting their proposed legislation, the “Saving Kids From Dangerous Drugs Act”:

The legislation comes in the wake of recent reports detailing the growing trend of candy-flavored meth.  According to law enforcement officers and drug treatment officials, methamphetamine and other illegal drugs are being colored, packaged and flavored in ways designed to attract children and minors.  The flavored meth first appeared on the streets earlier this year, and is being sold to children and teens. 

“This bill will send a strong and clear message to drug dealers – if you target our children by peddling candy-flavored drugs, there will be a heavy price to pay,” Senator Feinstein said.  “Flavored meth – with child-friendly names like Strawberry Quick – is designed to get people to try it a few times.  It’s all about hooking young people, and we have to stop this practice before it grows any further.  So, this legislation will increase the criminal penalties for anyone who markets candy-flavored drugs to our youth – by imposing on them the same enhanced penalties applied to dealers who distribute drugs to minors.”

“New techniques and gimmicks to lure our kids into addiction are around every corner.  Candy flavored meth is the latest craze used by drug dealers,” Senator Grassley said. 

[Emphasis Added]

Looks like the capitol complex email system could use some decent spam blocking software as well.

I’m also confused as to the purpose of the policeman’s email to parents in the first place. Are Mom and Dad supposed to stick their heads in Junior’s room and say, “I know we told you not to take any methamphetamine, but that goes double for the strawberry flavored kind”?

Obviously not. I think more likely it, perhaps unintentionally, plays into Drug Warriors’ (and parents’) fears and misconceptions about ‘children getting hooked on drugs’ – i.e. Junior might get hooked on this stuff accidentally, without even knowing what he’s taking in the first place.

Reminds me of the lyrics to “The Old Dope Peddler” by 50’s singer-satirist Tom Lehrer – whose albums were never far from my father’s phonograph:

He gives the kids free samples,
Because he knows full well.
That today's young innocent faces
Will be tomorrow's clientele.

[Hat Tip: Drug WarRant]

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The Times article about the recent Pew report (1 in 100 U.S. Adults Now in Prison) has lit up the blogosphere. I’ve been thinking about commenting on the story, but really, it’s just more of the same. True, hitting the 1% mark is something of a - what’s the word I’m looking for here – milestone? But we’ve been moving in this direction for sometime.

This paragraph in the article jumped out at me:

The report’s methodology differed from that used by the Justice Department, which calculates the incarceration rate by using the total population rather than the adult population as the denominator. Using the department’s methodology, about one in 130 Americans is behind bars.

Is the Justice Department is trying to downplay the most sensible way of reporting this information? Hey – I’m going to include American dogs and cats as well as babies and children… that way we can claim an incarceration rate of one in 250. Sounds a lot less extreme, doesn’t it?

Obviously, the War on Drug Users is the main culprit.

Other Blogs/Same Story

From Addiction Inbox:

The Pew study reveals that addiction is as firmly criminalized as ever. The compressed essence of the war on drugs is simply to put as many people in jail as possible. Obviously, long prison terms will not cure addicts of their condition, any more than long prison terms for diabetics would cure that condition.

From (Austin prosecutor) Steanso:

Personally, I'm all for treatment and rehab services for nonviolent drug offenders, and I'd like to see nonviolent offenders with mental health problems diverted into treatment as well. Aside from the fact that I think these solutions are more humane than simply locking people up, I think that overall, in the long run, treatment solutions are probably more cost effective than having to repeatedly deal with these people over and over in the justice system.

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This still is from the most famous part of the movie “Cool Hand Luke,” when Strother Martin utters the line after beating Paul Newman for smarting off to him. We all remember the line (and good grief, if you don’t remember it, put it in your NetFlix queue immediately if not sooner).

Luke has been brought back after escaping – I think it’s the first escape, because after the second escape they beat him more severely and make him dig and fill that grave again and again. He is paraded in front of the chain gang in leg irons, and he is being made an example for the others.

But what was it exactly that got him the billy club strike from the warden? I caught it on AMC recently, and here’s what precedes the line we all know by heart. 

Strother Martin (Warden): You’re gonna get used to wearing them chains after a while Luke. But you never stop listening to them clinking. They’re gonna remind you of what I’ve been saying: they’re for you own good.

Paul Newman (Luke): I wish you’d stop being so good to me, Captain.

War on Drugs – it just popped into my head when I heard those lines again.

There are 2 basic responses I hear when I evangelize about trying to end the war on drugs.

The first is cyclical and illogical. “They deserve to be in jail à They knew it was illegal à They committed a crime à Don’t do the crime, if you can’t do the time à …”

OK, but the question was, “Why is it criminal to possess drugs for personal use?” I could respond with “If marijuana is criminalized, only criminals will possess marijuana,” but I’m afraid humor is ineffectual here. The person I’m having the conversation with is not going to listen to reason.

But the more frustrating counter argument I hear is some sort of variation on the theme, “Drugs are Bad For You”. Well, maybe ‘more frustrating’ is the wrong way to put it.

I’m actually encouraged when I hear someone say that, because I know that, given enough time, I can turn them around. At least turn them around 85%. Because no one who thinks about it can reasonably believe that giving enhanced three strikes and you’re out (25 to Life) sentences for ‘simple’ possession is ‘for the defendant’s own good’. It’s clearly not.

But the frustrating part is knowing I can’t have this conversation with most folks that think this way. And too many people thinking like Strother Martin, that we’re imprisoning people for their own good? That would lead to America leading the world in number of prisoners.

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The Sheriff’s Office publishes a list of everyone booked into the Travis County Jail, and I’ve been watching it over the last week or so to keep track of the new policy of housing Immigration (ICE) in the jail. The numbers of folks listed under ‘INS Detainer’ has certainly increased exponentially.

But today I noticed that there were over thirty arrests for prostitution this weekend, and while I don’t look at the list regularly, much less keep detailed statistics,  I’m pretty sure that means there was a john sting operation.

This must mean that the Austin Police Department spent a ton of your money, dressing an undercover officer up as a hooker, and sent her out to solicit sex from ‘johns,’ that is to say, men looking for prostitutes. Or maybe they were stopped at a light because it was red, and had no intention of doing anything but passing through, until they were propositioned by a cop.

It used to be that I’d see these things publicized in the local paper – not the names of the arrestees, but the fact that the police department had run a sting, and how proud they were that they had arrested so many people, etc. But I’ve searched Google News and the Austin American Statesman, and I can’t find a press release or anything.

Hey, if you guys aren’t going to brag about this, is that some sort of indication that you think public support for these stings is waning? And if so, any chance you could use our money on something more useful?

Also See:

• Are Prostitution Stings Entrapment?
• Definition of Prostitution

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From the end of a post by Houston Defense Lawyer Mark Bennett:

Astute prosecutorial readers will note that in the last paragraph I referred to "the government" rather than "the State." This is another illustration of the point. "Government" means roughly the same as "State", but "government" is a word toxic to the State. Even people who are inclined to trust the State, or the Commonwealth, or (lie of lies) "the People" find good reasons in their life experience not to trust the government.

Reminds me of a story told by Austin defense lawyer Bill Allison. Bill heads the University of Texas Criminal Defense Clinic (where as his student I first heard this anecdote many years ago) and also the UT Innocence Clinic. Among his many achievements is representing Christopher Ochoa, who was finally released after a wrongful conviction.

Bill had finished up a fairly lengthy trial in federal court, at least several months, where the government is referred to as “the government”. Soon after that, he was trying a Possession of Cocaine case (or something like that) in State court, where the tradition is to refer to the prosecutor as “the State”.

Mostly out of habit, he just kept saying “the government this” and “the government that” until… the prosecutor actually objected to being called “the government”. The jury apparently looked bewildered at this; and seemed somewhat amused when Bill changed gears slightly and referred to them as “the State government” for the rest of the trial.

It’s a practical illustration of Mark’s point. “Government” is essentially a dirty word to many jurors, especially in Texas. May as well use it from voir dire to closing.

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Some queries, as usual, highlight good questions. Some I just find amusing. Here goes my summary of the best searches that brought up Austin Criminal Defense Lawyer this month.

Probation Fees Travis County Tx

It’s $62 per month to be on probation in Travis County, and, I think, pretty much everywhere in the state. Hyper technically, it’s $60 per month, and then they add a $2 transaction fee every time you pay. So I suppose if you paid it all up front at your first visit, you could save (Number of months on probation – 1) * $2. This does not include fines and court costs.

What is better, probation or prison?

Which is better: misdemeanor probation or county jail, especially a short or backtime sentence… depending on the context, that’s certainly a reasonable question. Prison sentences, however, are going to be 2 years at a minimum – ignoring State Jail Felonies, which are still 6 months day for day no parole, at a minimum. Most of the defendants I’ve ever met don’t ask me this one.

How much marijuana in Texas is considered dealing?

This really deserves its own post sometime, but, if you are talking about State not Federal charges, then the statutory answer is: there is no such thing as possession “with intent to deliver” marijuana in Texas. Or, more precisely, there’s no enhancement for “intent to deliver” as there is with cocaine, heroin, and pretty much every other drug or controlled substance penalized in the Texas Health and Safety Code.

One quick caveat: a prosecutor, judge or jury may treat a case differently, at least in terms of trying to go for a higher punishment than if there were not ‘evidence of dealing’. But the actual range of punishment including the maximum can not be increased.

Effectiveness War On Drugs

Easiest one of the month. And the answer is… zero. Unless by ‘effectiveness’ you meant ‘lining the pockets of the private prison industry’.

Lawyers who smoke medical marijuana

Well, if you’re a lawyer, then you know it’s still illegal under federal law, even if you live in a state with medical marijuana exceptions (i.e., somewhere besides Texas). So you probably won’t be advertising this fact on the internet.

Texas MIP self defense

I’ve tried to construct some sort of hypothetical where you could reasonably ask for a self defense instruction in a Minor in Possession case, but I can’t seem to do it. Anyone else want to take a stab at it? (He was coming at me with a knife, so I picked up the nearby beer can and chucked it at him. Best I can think of.)

Oddest Search of the Month: speech for student take the drugs and other vice in pup

OK. That one really has me stumped.

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