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

Wall Street Journal:

The Obama administration Wednesday asked Congress to end the disparity in penalties for use of crack- and powder-cocaine crimes, a stance sure to bring on contentious debate from the law-enforcement community.

"The Administration believes Congress's goal should be to completely eliminate the sentencing disparity between crack cocaine and powder cocaine," said assistant Attorney General Lanny Breuer, who heads the Justice Department's criminal division.

Under current law, someone caught with 500 grams of powder cocaine gets a five-year sentence, while it takes only five grams of crack cocaine to trigger the same sentence, even though there is no physiological difference.

More than half of all federal inmates were convicted of drug offenses, and in today’s economic climate, perhaps the need to cut costs will bring some sanity to our drug laws. Of course, there are those who think that a 1:1 ratio would be just fine as long as you multiplied the powder cocaine punishments by 100, rather than by dividing the crack sentencing guidelines by the same amount:

James Pasco, executive director of the Fraternal Order of Police, which represents about 325,000 uniformed officers, said that while his group is against the disparity, it would rather see it rectified by increasing the penalties for powder cocaine. "There is a widespread misconception that crack dealers are somehow being victimized by the government," he said. "It is extraordinarily difficult to victimize a criminal unless that person first commits a crime."

But you can indeed victimize a “criminal” by overpunishing him for his “crime”. Folks caught with small amounts of marijuana are criminals, aren’t they? Therefore it’s automatically OK to give them a 5 year sentence? 25 years? They aren’t victims, they are criminals… so any punishment is justified. (Folks not caught with marijuana are also criminals, of course…)

Mr. Pasco added that the disparity could be eliminated by lowering the amount of powder cocaine it takes to trigger the five-year sentence.

A while back Greenfield commented on one of the problems with “niche blogging”: eventually you’re going to end up repeating yourself. I paused for a quick search of my archives, because this story was ringing a pretty loud bell with me, and up pops one of my first posts ever (from November 2006):

If this isn’t shocking on its face, please reread this last quote again. Outloud. Then read it to a friend and ask them their reaction to it.

The Fraternal Order of Police would support increasing the penalties for offenses involving powder cocaine through a reduction in the quantity of powder necessary to trigger the 5- and 10-year mandatory minimum sentences, thereby decreasing the gap between the two similar offenses and addressing the concerns of those who question the current ratio without depriving law enforcement with the tools they need to control the possession, use, and sale of powder cocaine.

The 5-year mandatory minimum sentence can be triggered by 5 grams of crack cocaine. How much is 5 grams of something? 5 Sweet-and-Low packets worth of cocaine is 5 grams. So his solution to the disparity problem…increase the penalties for powder, rather than decreasing them for crack! So the disparity is a problem, one best solved by even more prison building.

The difference is that in 2006 we were still paying up to a million dollars a pop for houses worth less than half that amount, while applying for credit cards and taking out third mortgages. Not to mention the billions being paid by CEOs of car companies to themselves for doing such a good job. Now that we’re out of money, legislators have some political cover for undoing what they did a long time ago.

With every cloud a silver lining, eh? Well maybe this big-R Recession’s silver lining will be sanity in sentencing, since we can literally no longer afford huge sentences for drug addicts.

• Email This
• Print
• Comments (2)
• Trackbacks

The subcommittee hearing on whether to send a bill of impeachment (if that’s what it’s called) to the House floor regarding (some of) CCA Judge Sharon Keller’s outrageous, improper and unethical actions is apparently starting up around 5 pm today.

I just called Mark Bennett, and he’s there, willing and able to help do whatever needs to be done, but I had to tell him that I didn’t have the moxie to tell my wife I wouldn’t be available for twins-pickup-duty at daycare, so I’m skipping out. I’m sure Mark will give us a blow-by-blow update later.
 

• Email This
• Print
• Comments
• Trackbacks

I’m not much for labels, and I refuse to say I’m a Democrat, or a Libertarian, and I assume it goes without saying I reject the notion that I am a Republican.

But if you had to pigeon hole me, I’m something of a little “l” libertarian, at least as far as that means I’m socially “liberal” and economically “conservative”. I don’t like government waste any more than the next guy. Waste, that is, government waste.

But the big “L” libertarians often use a certain phrase that I just don’t understand. For example, my friend and Dallas criminal defense lawyer Robert Guest uses it in a post about tea parties:

As a libertarian I'm for anything that reduces the size and scope of government.

You’re for anything that reduces the size and scope of government? How about…

• Closing down all the public schools?
• Doing away with the fire stations?
• Reneging on our promises and cutting off Medicare for the elderly?
• Shutting down all the prisons (not just the 50% filled with drug war victims)?

I’m for funding science and technology research, including arguably unnecessary programs like NASA. Financial aid for undergraduates seems like a good idea, but I suppose a strict economic conservative could make a reasoned argument against it. Maybe the private sector could do a better job delivering mail than the U.S. Postal Service seems to. I doubt it would, but I’d be willing to listen.

But anything that reduces government? Isn’t that going too far?

[Update: Windy Pundit answers back.  He points out not only the obvious - that the "anything" part is an exageration, but defends the big "L" libertarian position well.]

• Email This
• Print
• Comments (4)
• Trackbacks

Sometimes a journalist manages to put everything you need to know about a subject in the first sentence of his report. From Adam Liptak’s article “Court Debates Strip Search of Student”:

The United States Supreme Court spent an hour on Tuesday debating what middle school students are apt to put in their underwear and what should be done about it.

When the answers are so obvious – (a) anything they want to and (b) nothing should be done about it – it’s pretty sad that our justice system struggles to come to a conclusion. It really shouldn’t matter that this was a 13 year old honors student, and that the suspected contraband was prescription strength advil, and that the “information” came from an unreliable tattle-tale trying to shift blame away from herself, or that the strip search found nothing, although those facts do add to the insanity of the situation.

Liptak’s first sentence synopsis is entirely accurate. And the fact that anything about this topic is “debatable” is ludicrous. This is apparently how low we have sunk: what middle school students put in their underwear, and under what scenarios can the school and its administrators go a-peeping.

• Email This
• Print
• Comments (3)
• Trackbacks

The jury instructions in U.S. v. Lori Drew read, in part:

In order for the defendant to be found guilty of the lesser crime of accessing a protected computer without authorization or in excess of authorization, the Government must prove each of the following elements beyond a reasonable doubt.

First, the Defendant intentionally accessed a computer without authorization or in excess of authorization.

Second, the Defendant’s accessing of that computer involved an interstate or foreign communication; and

Third, by accessing the computer without authorization or in excess of authorization, the Defendant obtained information from a protected computer.

You remember Lori Drew, don’t you? She’s the woman who set up a MySpace account to harass her teenage daughter’s former friend; her messages no doubt contributed in large part to the eventual suicide.

• Email This
• Print
• Comments
• Trackbacks

From John Kelso’s column “Adios, ‘Weed Hill’; Maybe They’ll Like Bong Bowl Better” in the Austin American Statesman:

In a story in this newspaper's Wednesday edition, [Leander School Board president] McCall was quoted as saying that the Leander school trustees had ditched the name Tumbleweed Hill Stadium because it was possible "the kids are going to say, Tumbleweed Hill — oh, that's marijuana."

In Longhorn-land it’s pretty common to make fun of Aggies, but they had to go to College Station, of all places, to find someone with some sense:

"None of those things have anything to do with pot," said Jim Manhart, an associate professor of biology at Texas A&M. "These are people who have too much time on their hands, if they worry about stuff like that."

I quickly filed that last quote under “duh” but it got me to wondering.

My sister lives near Hemphill Park here in Austin. What kind of message does that name send to the kids?

Matter of fact there’s lots of people, places and things that could use a name change:

Did Truman, Churchill and Stalin really meet at the Potsdam Conference? (And does that make it a joint meeting?) Two presidents before Truman we have “Herb”ert Hoover… since we usually use the full name with “e-r-t” included, we could consider giving this one a pass. But we might want to have a meeting or two about it.

Spiderman’s girlfriend is Mary Jane Watson? Marketing marijuana in comic books – shameful.

Should we really be telling high schoolers that shots were heard coming from the grassy knoll?

Alcohol is legal while marijuana is not, but there’s no excuse for the fact that America’s number one selling beer is called “Bud”.

And let’s stop doctors talking about chronic diseases; they are clearly just sending not-so-subliminal messages about supporting marijuana decriminalization. (Actually, they do support it, but that’s another story altogether.)

Suggestions from readers are welcomed…
 

• Email This
• Print
• Comments
• Trackbacks

All the listservs are abuzz (Austin, Texas and national criminal defense lawyer association listservs, that is). The Supreme Court has just handed down Arizona v. Gant, which from the non-binding syllabus portion reads:

Held: Police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.

One important, and unfortunately distinguishing fact from most vehicle searches in this case was that the defendant managed to park his car in his driveway before being arrested by the police. Therefore the typical scenario where the "traffic stop leads to an arrest, the arrest leads to the impound, and the impound justifies the inventory search" analysis did not apply. 

This case simply addresses the search incident to arrest issue, and whether or not the police may automatically search a vehicle if they see an offense committed in it. And for no other reason. From the opinion:

Among other things, Gant argued that Belton did not authorize the search of his vehicle because he posed no threat to the officers after he was handcuffed in the patrol car and because he was arrested for a traffic offense for which no evidence could be found in his vehicle.

When asked at the suppression hearing why the search was conducted, Officer Griffith responded: “Because the law says we can do it.”

Criminal defense lawyers nationwide can actually hear that smug tone of voice: because I can / smirk. Indeed the opinion quoted Justice O’Connor’s prior observation that “lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception”.

No surprise there. When courts repeatedly allow and excuse all sorts of police behavior, they are likely to feel entitled to repeat it. That’s just human nature. I wonder though, since the majority actually bothered to quote the officer’s sarcastic response whether they too may have heard his insolent tone of voice as well.

Most encouraging perhaps was the court’s rejection of the typical State argument: that the police interest in investigation – on a whim – is more important than the citizen’s privacy interests:

For several reasons, we reject the State’s argument. First, the State seriously undervalues the privacy interests at stake. Although we have recognized that a motorist’s privacy interest in his vehicle is less substantial than in his home, see New York v. Class, 475 U. S. 106, 112– 113 (1986), the former interest is nevertheless important and deserving of constitutional protection, see Knowles, 525 U. S., at 117. It is particularly significant that Belton searches authorize police officers to search not just the passenger compartment but every purse, briefcase, or other container within that space.

A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals.

Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment—the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.

No matter how this decision gets limited in the future, those last two paragraphs are very heartening. I’ll take a renewed interest in the original understanding of the purpose of the Fourth Amendment any day of the week.

• Email This
• Print
• Comments
• Trackbacks

Via email:

I've recently gotten serious about attending law school and started studying for the LSAT last week.

I have been speaking with as many lawyers I can in order to get a realistic outlook on law, however I have not spoken to any criminal defense attorneys.

If I could ask you a few questions about 1.) Law School 2.) Your career 3.) any thoughts/opinions on the profession, I'd greatly appreciate it.

My response:

1) Law School is mostly boring. Don’t go unless #2 applies to you.

2) I love being a criminal defense lawyer. That’s what I wanted to be when I went to law school.

If you want to be a [fill-in-the-blank-type-of] lawyer, then obviously law school is a necessity, and you’ll just have to put up with the boring parts. After you suffer through all the mandatory stuff during first year – where you have little or no control over what classes you must take – then concentrate on taking the classes that will actually apply to your future career.

Try to find a law school that has clinics that allow you to practice as a third year student while supervised by lawyers that know what they are doing. For me, the criminal defense clinic at UT Law was invaluable. Best course I took.

3) I have no experience with non-criminal defense parts of the profession. Therefore I have few thoughts and no opinions about that. I’m just one of the lucky people that gets to enjoy what he does for a living.
 

• Email This
• Print
• Comments (1)
• Trackbacks

Peter Hitchens explaining the difference between alcohol prohibition, universally acknowledged as an abject failure, and marijuana and drug prohibition notes:

Alcohol had been legal for centuries, part of the culture of Christian civilization. You might as well try to make breathing illegal.

But cannabis, cocaine and heroin are alien to our world, and could be driven out by firm action.

Alien to our world? Guither’s response:

Right -- it's not like they just... grow in the ground or anything. They came in spaceships.

We need to be firm and tell the space aliens to load up their cannabis, cocaine and heroin and take it all back to planet Druggie.

• Email This
• Print
• Comments (3)
• Trackbacks

Just in time for you-know-what day, a federal judge has denied Richard Hatch’s motion to move to Argentina while on  his soon-to-be supervised release for filing a false tax return, according to the Austin American Statesman.

Hatch first gained fame as the first ever winner of the TV “reality” show Survivor, and was the first of seventeen winners – yes, that’s 17 - so far to walk off the stage with the oversized one million dollar check. Unfortunately, his defense at jury trial that he thought CBS had actually pre-paid his taxes and that the $1 million was after-tax winnings was somewhat undercut by his additional failure to report another few hundred thousand in earnings through radio appearances made possible by his sudden fame.

Bearing in mind that nothing on this blog – especially the following – is meant to be taken as legal advice, let me leave you with this thought:

26 USC §7201 - Attempt to evade income tax by filing a false individual tax return… is a felony punishable by up to 5 years in prison.

26 USC §7203 – Failure to file a tax return (at all)… is a misdemeanor.

Maybe I should start a category called “Things that make you go Hmmmmmm”.
 

• Email This
• Print
• Comments
• Trackbacks

So in the 30 minutes in between reading Bennett’s post and browsing available Kindle books, newspapers, magazines and blogs I succumbed to my tendency to impulse buy. In my defense, I’ve been thinking about this purchase for a while.

Plus who knows how long it would have taken Bennett to get through all the dead-tree books he has piled up and to post an actual review of the Kindle. Meanwhile I am drooling over this recent email:

Delivery estimate: April 15, 2009
1 "Kindle 2: Amazon's New Wireless Reading Device (Latest Generation)"

• Email This
• Print
• Comments (3)
• Trackbacks

…hubris or DWI?

• Email This
• Print
• Comments
• Trackbacks