Criminal Justice

  • May 1, 2013

    by Jeremy Leaming

    Supposedly the Obama administration’s justice department has “bigger fish to fry” than people possessing small amounts of marijuana for recreational use. The president’s statement to ABC News not long after his reelection regarded Colorado and Washington, where voters approved initiatives decriminalizing some amounts of marijuana for recreational use.

    But during his first term, President Obama also said his administration would not follow the path of his predecessor in harassing and shutting down medical marijuana dispensaries in the states that have enacted medical marijuana laws. More than a dozen states and the District of Columbia have medical marijuana laws. But late last year, Robert Wilbur reported that during its first three-and-half years the administration had “conducted more raids on state-licensed dispensaries than the Bush administration did in eight years.”

    So while the Obama administration’s rhetoric regarding the so-called war on drugs has softened, its policies are still weighted heavily to tough-on-drug measures. A post earlier this week noted the administration’s Office of National Drug Control Policy is continuing its strategies laid out in 2010, including allotting more money for tough-on-drug tactics.   

    Reporting for Salon, Natasha Lennard focuses on the Obama-appointed U.S. Attorney for the Northern District of California Melinda Haag who is “threatening landlords housing medical marijuana dispensaries with 40 years in federal prison.” Citing the East Bay Express, Haag has apparently been obsessed with the shuttering dispensaries and harassing landlords that house them is a part of the strategy.

    California passed its medical marijuana initiative in 1996 with 56 percent of the vote. But because the Drug Enforcement Agency is stuck in 1936 – marijuana is a dangerous drug that will lead to “delinquent behavior” and “open the door” to other drugs -- the federal government continues to spend boatloads of money and time on disrupting states’ efforts to regulate their medical marijuana industries.

    As the East Bay Express notes, Calif. officials are pleading with the federal government to back off. Assemblyman Tom Ammiano has asked the state to be permitted to regulate the industry “without the threat of new widespread prosecutions of medical providers.” In an interview with CNN last fall, the Express reported, Brown said, “It’s time for the Justice Department to recognize the sovereignty of the states. … We have a laboratory of democracy. We don’t always agree. … I believe the president and justice department ought to respect the will of these sovereign states.”

    Leaving states to their own devices, of course, cannot always be a good thing. For instance when states seek to limit liberty, like denying same-sex couples the right to wed, that’s not at all a bit helpful to democracy. But generally progress can occur when states seek to expand liberty or protections of liberty.

  • April 26, 2013

    by Jeremy Leaming

    Despite the rhetoric to move beyond a perpetual “war on drugs” the Obama administration remains mired in the tough-on-drugs mindset and its Justice Department seems befuddled by the states that have legalized small amounts of marijuana for recreational use.

    The Government Accountability Office (GAO) issued a report revealing that the administration’s goals set out in 2010 have largely not been met. The report noted that the Office of National Drug Control Policy and other federal agencies established “seven Strategy goals related to reducing illicit drug use and its consequences by 2015.” GAO continued, “As of March 2013,” its “analysis showed that of the five goals for which primary data on results were available, one shows progress and four show no progress.”

    But, as The Huffington Post’s Matt Sledge reports drug czar Gil Kerlikowske, head of the Office of National Drug Control Policy has just released another drug control plan that builds on the policies the GAO has said are not working. More troubling, Sledge notes that the drug office’s budget “still devotes less than half of it funds to treatment and prevention. The GAO found that prevention and treatment programs are ‘fragmented’ across 15 federal agencies.”

    In an April 24 post on its web site, the Office of National Drug Control Policy bemoans “illicit drug use,” claiming “drug-induced overdose deaths now surpass homicides and car crashes as the leading cause of injury or death in America.” It also declares “we cannot arrest or incarcerate our way out of the drug problem.”

    The language from the administration’s drug control office is softer than rhetoric about the “war on drugs,” which the Nixon administration launched with the enactment of the Controlled Substances Act (CSA) several decades ago. But the administration’s drug control office is not embracing drug legalization or even any changes to the CSA, such as removing marijuana from the list of drugs deemed as dangerous as say heroin.

    The muddled message from the Obama administration -- not helped by its Justice Department’s silence on how it will respond to Colorado and Washington, where officials are crafting measures to implement and regulate the recreational use of marijuana -- is preserving tough-on-drugs policies.

  • April 23, 2013
    Guest Post

    by Vincent Imhoff, Managing Partner, Imhoff & Associates, P.C.

    Clarence Earl Gideon was about 50-years old when he was arrested in relation to the theft of money and wine from a pool hall in Panama City, Fla., in 1961. Gideon’s father had died when he was young, and Gideon himself quit school after eighth grade, running away from home and becoming a drifter. By the time Gideon was 16 he already had a criminal record, one that would follow him up until that fateful day when he was arrested, tried, and convicted of breaking and entering with intent to commit petty larceny. Gideon was too poor to pay for any type of defense in the case, and back in 1961 in Bay County, Fla., that meant you had to defend yourself against even the toughest prosecuting attorneys unless you were convicted of a capital offense. So it was that the Gideon’s judge denied him access to a lawyer, Gideon defended himself, lost, and was sentenced to the maximum prison term of one year.

    While serving his time, Gideon learned a little bit about law and wrote a 5-page letter to the Supreme Court about how his right to counsel under the Sixth Amendment had been violated. The Supreme Court eventually decided to take his case, and, under the argument that “you cannot have a fair trial without counsel,” ruled in Gideon’s favor. The landmark case, Gideon v. Wainwright, set precedent that states had to provide counsel for criminal defendants who could not afford counsel, essentially owing to the eventual segment of the Miranda Rights that basically read “if you cannot afford an attorney, one will be appointed for you.” After a retrial, Gideon was set free, and the legal landscape of the United States of America was changed.

  • April 9, 2013

    by Jeremy Leaming

    It’s been 50 years since the U.S. Supreme Court ruled that criminal defendants have a constitutional right to counsel even if they cannot afford it. But too many states have not lived up to their constitutional obligation of ensuring that indigent defendants have counsel, helping lead to mass incarceration.

    A new report from the Brennan Center For Justice explains that the states’ woefully ineffective handling of indigent defense cases has led to mass incarceration that is far more costly than providing adequate counsel to poor defendants. The report also provides suggestions for reforming the system.

    In Gideon at 50: Three Reforms to Revive the Right to Counsel it is noted that at the time the high court down Gideon v. Wainwright in 1963 there were about 217,000 people in prison. “Today, the incarcerated population has expanded to approximately 2.3 million people. The United States has only 5 percent of the world’s population, but 25 percent of its prison population. One in four American adults now has been convicted of a crime. We live in an era of mass incarceration,” the report states.

    If Gideon’s promise were being met, then it is likely the country could more easily overcome the crisis of mass imprisonment.

    “Our poorly funded public defense system exacerbates our nation’s mass incarceration problem,” the Brennan report continues. “Rarely does the accused have adequate legal representation. Rarely is their fight balanced. Rarely do public defenders have the resources they need to keep Gideon’s promise of providing a constitutional right to effective counsel.”

    The report makes a strong case that it would be a far more effective use of public dollars to help ensure indigent defendants have competent, adequate counsel instead of continuing to support a mass incarceration system that is incredibly costly and harmful to minority communities.

    First, the report notes that mass imprisonment largely targets minority communities. “African-American and Hispanics, who make up less than 30 percent of the country’s population, are nearly 60 percent of the prison population. Whites, with 64 percent of the general population, make up approximately 35 percent of the prison population.”

  • March 28, 2013

    by E. Sebastian Arduengo

    After more than a decade of watching procedural shows like CSI and their progeny, you might think that video recordings of custodial police interrogations are de rigueur in the law enforcement community. But, as it turns out, fewer than half of the states require law enforcement agencies to record custodial interrogations (questioning initiated by police officers after someone is taken into custody), and of those, four states record interrogations because the state supreme court ruled that not doing so violated the suspect’s rights. Right now, an additional seven states are actively considering whether to require recording of felony interrogation. Rightly or wrongly, the practice is hugely controversial in a number of police departments across the country, mostly because officers worry about whether being on camera will deter suspects from confessing or affect the rapport of an interview. But, until last year, there weren’t any comprehensive studies about the law and practices of recording interrogations nationwide.

    That changed with the release of Jenner & Block Partner Thomas P. Sullivan’s research. After nine years of research, Sullivan and his team at Jenner & Block published their results after having surveyed more than 1,000 police departments across the country, ranging in size from big-city departments with hundreds of officers to rural sheriffs’ departments with only a handful of officers. What they found was that without a shadow of a doubt, there was no good reason not to record custodial interrogations from the time a Miranda warning is given advising a suspect of his rights.