26 July 2004
Keep Those Prisons Full
Despite steady crime rates ever more people are having their lives controlled by the courts.
Writs of Actual Innocence
The Writ has not yet flooded the Virginia Court of Appeals. Of course, it has only been in existence since 01 July 2004.
There is also a concern that law in this area will be developed in response to a lot of poorly drafted, ill-reasoned motions from pro se litigants in prison (jail house lawyers). Most likely those fears are correct. Desperate (or bored) men in prison will probably be the source of 95% of these motions and the courts will probably begin to view them with the same jaded eye as is used in viewing habeus petitions.
Lv SWVaLaw
There is also a concern that law in this area will be developed in response to a lot of poorly drafted, ill-reasoned motions from pro se litigants in prison (jail house lawyers). Most likely those fears are correct. Desperate (or bored) men in prison will probably be the source of 95% of these motions and the courts will probably begin to view them with the same jaded eye as is used in viewing habeus petitions.
Lv SWVaLaw
United States v. Holmes (4th Cir)
Subjects: (1) Do the police have to determine that the persons they have detained are the ones they are looking for before they search the vehicle the people were driving in?
No. The fact that the persons detained were not the people the police were looking for is irrelevant. Officer safety conquers all and the officers can search the car to check for other dangerous occupants. But wait, that doesn't exactly cover the officers' actions in searching the console and glove compartment. Maybe they suspected the involvement of the dreaded Lilliputian mafia.1 Naawww. Gotta be a better explanation than that. Got it! The police are worried that if they let these people go - who are not even wanted and are not the people the police are looking for - the guys would have access to any weapons which might be in the car.
[comment] Yeah, that's a great bit of reasoning. It ranks right up there with Anselm's best. Officers will (and should) have officer safety concerns each and every time they stop a car. By this case's reasoning, if an officer pulls you out of the car but does not attempt to ascertain who you are that officer can search your car because we could all be dangerous felons. And it's so hard to look at ID's and wait those "5-15 minutes" for a criminal record. 2
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1 Yes, I know. There is no such thing as the Lilliputian mafia. They are just family members, acquaintances, and businessmen meeting and interacting at social clubs for the purpose of camaraderie and friendship. The fact that some rogue elements in this community have, in the past, undertaken illegal activities should not lead us to portray all of these hardworking businessmen as criminals.
2 Funny. I've stood in several prosecutor's offices and watched these records get pulled up. It never seems to take more than a minute or so. But I guess law enforcement is still using those trusty old Apple IIe's with 300 baud modems.
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(2) Can people handcuffed, locked in the back of a police car, and surrounded by police be a threat to get back to their car and get any weapons therein?
Yes. If the people have no warrants and are not known to have broken any laws the police have to let them go. Thereafter, these citizens against whom the police have no evidence would be allowed back in their car. These citizens against whom the police have no evidence then would have access to possible weapons which the officers have no proof exist.
[comment] Innocent people and imagined weapons. Always a good basis for a search. Who needs the 4th Amendment anyway?
(3) Was there sufficient indicia that the two guys in this case were dangerous?
"Admittedly, the suspicion of danger dissipated after the officers discovered that the two suspects were [not the person they were looking for]. But by that time the search had already been completed, and was not retroactively invalidated by the officers' subsequent discovery."
[comment] Translation: No, but we're going to let the officers get away with this anyway because they didn't investigate properly.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
[overall comment] This is a Thornton search gone bad. The police just assumed that they had at least one of the guys they were after.3 They didn't.
Not ascertaining who these guys were and if there was any reason to arrest or hold them should have invalidated the search. Since no bad act or warrant was attributed to either at the time there was nothing - absolutely nothing - upon which to justify the search for an imagined weapon.
This is a case of 20/20 hindsight and hard facts making bad law. We all know that Holmes is a bad guy and that he was the guy the police should have been looking for. Law enforcement screwed up and our rights take a beating as the court covers for it rather than stepping up.
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3 Although even that premise seems a little dicey. Judge Luttig doth protest too much in his explanation of the facts. However, I do not have the transcript so I must, perforce, accept his explanation at face value.
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The case is here.
No. The fact that the persons detained were not the people the police were looking for is irrelevant. Officer safety conquers all and the officers can search the car to check for other dangerous occupants. But wait, that doesn't exactly cover the officers' actions in searching the console and glove compartment. Maybe they suspected the involvement of the dreaded Lilliputian mafia.1 Naawww. Gotta be a better explanation than that. Got it! The police are worried that if they let these people go - who are not even wanted and are not the people the police are looking for - the guys would have access to any weapons which might be in the car.
[comment] Yeah, that's a great bit of reasoning. It ranks right up there with Anselm's best. Officers will (and should) have officer safety concerns each and every time they stop a car. By this case's reasoning, if an officer pulls you out of the car but does not attempt to ascertain who you are that officer can search your car because we could all be dangerous felons. And it's so hard to look at ID's and wait those "5-15 minutes" for a criminal record. 2
----------------------------
1 Yes, I know. There is no such thing as the Lilliputian mafia. They are just family members, acquaintances, and businessmen meeting and interacting at social clubs for the purpose of camaraderie and friendship. The fact that some rogue elements in this community have, in the past, undertaken illegal activities should not lead us to portray all of these hardworking businessmen as criminals.
2 Funny. I've stood in several prosecutor's offices and watched these records get pulled up. It never seems to take more than a minute or so. But I guess law enforcement is still using those trusty old Apple IIe's with 300 baud modems.
----------------------------
(2) Can people handcuffed, locked in the back of a police car, and surrounded by police be a threat to get back to their car and get any weapons therein?
Yes. If the people have no warrants and are not known to have broken any laws the police have to let them go. Thereafter, these citizens against whom the police have no evidence would be allowed back in their car. These citizens against whom the police have no evidence then would have access to possible weapons which the officers have no proof exist.
[comment] Innocent people and imagined weapons. Always a good basis for a search. Who needs the 4th Amendment anyway?
(3) Was there sufficient indicia that the two guys in this case were dangerous?
"Admittedly, the suspicion of danger dissipated after the officers discovered that the two suspects were [not the person they were looking for]. But by that time the search had already been completed, and was not retroactively invalidated by the officers' subsequent discovery."
[comment] Translation: No, but we're going to let the officers get away with this anyway because they didn't investigate properly.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
[overall comment] This is a Thornton search gone bad. The police just assumed that they had at least one of the guys they were after.3 They didn't.
Not ascertaining who these guys were and if there was any reason to arrest or hold them should have invalidated the search. Since no bad act or warrant was attributed to either at the time there was nothing - absolutely nothing - upon which to justify the search for an imagined weapon.
This is a case of 20/20 hindsight and hard facts making bad law. We all know that Holmes is a bad guy and that he was the guy the police should have been looking for. Law enforcement screwed up and our rights take a beating as the court covers for it rather than stepping up.
-----------------------------
3 Although even that premise seems a little dicey. Judge Luttig doth protest too much in his explanation of the facts. However, I do not have the transcript so I must, perforce, accept his explanation at face value.
-----------------------------
The case is here.
25 July 2004
"New" Criminal Law Blog
Not sure how Crime and Federalism found it, but here's a really good Blog: I'm a PD.
I've just spent a good little while reading it and recommend it to you all.
I've just spent a good little while reading it and recommend it to you all.
No Explanation
The feds conduct a rather massive raid on a company but don't bother to explain why.
Other than "because we can" what explanation is there for that behavior? If the company is illegally selling paperclips to Botswana the raid has already tipped the executives off and they're gonna take that long awaited trip to whatever country doesn't extradite. As well, the Botswanian agents now know you're on to them and are heading back to the mother country for that long needed visit with gramama. Keeping the affidavit under seal only serves to hide information from everybody else.
Other than "because we can" what explanation is there for that behavior? If the company is illegally selling paperclips to Botswana the raid has already tipped the executives off and they're gonna take that long awaited trip to whatever country doesn't extradite. As well, the Botswanian agents now know you're on to them and are heading back to the mother country for that long needed visit with gramama. Keeping the affidavit under seal only serves to hide information from everybody else.
24 July 2004
Prosecutorial Misconduct in the Jackson Case
I really haven't followed the case all that closely so I cannot comment on it as a whole. However, when the prosecutor approves a raid of the office of a private detective working for the defense attorney and then claims he didn't know of the relationship it just doesn't hold water.
Possible sanctions are discussed here.
Possible sanctions are discussed here.
Two Tiered Justice System?
Asking the important question: are we developing a two tiered system - one for celebrities and one for everyone else?
Oh, come on. Developing?
There has always been and will always be a two tiered system. Judges act differently in celebrity cases for at least two reasons. First, because of high interest the release of certain information can and will affect the jury pool. Second, and primarily, because the celebrity usually has tons of money her options are far greater. If my local street dealer had 500K to throw at a defense I could make life a living hell for the prosecutor. New motions could be ground out and presented day after day by associates covering every possible legal issue. Private investigators could look into every aspect of the arrest, the background of every single officer involved, the patterns and behaviors typical of local prosecutions, etc. Research of the judge's proclivities could be done. Mock juries could be held to see how best to attack the prosecutor's case. A grand old time would be had by all.
Of course, I'll not actually be able to run a Defense like that until I am hired by Kobe or Martha. I'm waiting, but they just don't seem to realize that they need to hire me.
Oh, come on. Developing?
There has always been and will always be a two tiered system. Judges act differently in celebrity cases for at least two reasons. First, because of high interest the release of certain information can and will affect the jury pool. Second, and primarily, because the celebrity usually has tons of money her options are far greater. If my local street dealer had 500K to throw at a defense I could make life a living hell for the prosecutor. New motions could be ground out and presented day after day by associates covering every possible legal issue. Private investigators could look into every aspect of the arrest, the background of every single officer involved, the patterns and behaviors typical of local prosecutions, etc. Research of the judge's proclivities could be done. Mock juries could be held to see how best to attack the prosecutor's case. A grand old time would be had by all.
Of course, I'll not actually be able to run a Defense like that until I am hired by Kobe or Martha. I'm waiting, but they just don't seem to realize that they need to hire me.
23 July 2004
Blakely and Trial Courts
A couple days ago Will Baude (of Crescat Sententia fame) authored an article over at TNR in which he posited the reason that Blakely has caught fire is because of the ideological mix in the lower courts:
JNV, also at the Conspiracy, agrees with Orin and offers evidence that ideology is not the root of the Blakely reaction:
It's at this point that ideology came into play. Some judges showed admirable restraint, attempting to interpret the decision narrowly and either severed the upward departures or required a sentencing jury. However, a number of judges have stepped beyond this. Some have ruled that the guidelines are, in their entirety, now merely advisory. You can come to this conclusion if you don't believe the guidelines severable or the courts to have the power to empanel sentencing juries. Still, too many courts seem just a little too eager to stretch past the other two possibilities in order to reach this conclusion. Mind you, I find the federal guidelines repugnant and would prefer this solution myself; I just don't think it is the most valid of options (see here).
The worst of the worst have been those courts which impute upon the prosecution a "right" to the upward departures (phrased as fairness). Following this line of reasoning when sentencing does not have upward departures the guidelines are constitutional. However, when the sentence would have upward departures it is unfair to deny those to the prosecution. Therefore, in those applications only the guidelines are unseverable and unconstitutional. Thus the upward barrier is removed and the judge is allowed to sentence using the guidelines - with the upward departure included - as a "recommendation."
Personally, I don't break this down as liberal/conservative. I think a lot of conservative judges can (and probably will) come to one of the first three conclusions. The fourth is nothing more than a pro-prosecution position. In fact, it would be pretty easy to characterize that as legislating from the bench; a total rewrite of the law.
I figure the S.Ct. is going to have to hear this in the next term. It will be interesting to see which theory it adopts.
[addendum] All Deliberate Speed also has an excellent post which gives an example of why pre-Blakely sentencing was so wrong.
The lower courts, after President Clinton's presidency, are now a mix of the mostly conservative judges appointed by Reagan and Bush I and the largely pragmatic liberals Clinton selected. Blakely resonated among the lower courts . . . in part because the ideologically mixed majority that decided it closely matched the ideological composition of the circuit courts that have started to implement it. That is, it requires a critical mass of judges sympathetic to the reasoning behind a High Court decision for any such ruling to catch fire in the lower courts. In Blakely, you have a majority that incorporated both ends of the Court's ideological spectrum--meaning that you also have a critical mass of lower court judges who are, for one reason or another, sympathetic to the ruling, and therefore interested in applying its logic to other cases.Orin Kerr, now back at the Volokh Conspiracy, disagrees. He points out that if the hypothesis were true the judges would have acted previously under Apprendi and Ring; they did not.
What makes Blakely different? Blakely is the first Apprendi case to involve a sentencing scheme quite similar to the Federal Sentencing Guidelines. Regardless of their views, federal lower court judges can read Blakely and see that its reasoning places routine federal court sentencing practices in doubt. Whether they think Blakely is right or terribly wrong, it's a hard decision for a lower court judge to ignore.Orin believes that the post-Blakely reaction is a triumph of legal reasoning over entrenched ideology.
JNV, also at the Conspiracy, agrees with Orin and offers evidence that ideology is not the root of the Blakely reaction:
Exhibit A . . . is Paul Cassell. As an academic, Cassell was an advocate of the sentencing guidelines, yet he was one of the first federal judges to find the federal sentencing guidelines unconstitutional under Blakely.However, Spencer, at Mediocrity's Co-Pilot, is deeply suspicious of Judge Cassell's quick conversion.
Perhaps I'm alone in being overly suspicious about the rapid response of a Conservative judge like Cassell -- but, given the fact that SCOTUS made a point of avoiding a ruling on the Federal statute, it seems odd that a judge in disagreement with the ruling would act so swiftly & thoroughly to maximize the ruling's effect. Unless, of course, his very point was to send a message to SCOTUS.[comment] I think the truth is somewhere in the middle of all of that. Orin is right that the implimentation of Blakely after the courts had rejected claim after claim rising out of Apprendi et al. is a triumph of legal reasoning. After Blakely even the most obtuse of judges could not ignore the logic of Apprendi. Everyone, no matter their philosophical bent, knew that upward departures based on things like unproven "relevant conduct" etc. were no longer allowed. The question then became what to do.
It's at this point that ideology came into play. Some judges showed admirable restraint, attempting to interpret the decision narrowly and either severed the upward departures or required a sentencing jury. However, a number of judges have stepped beyond this. Some have ruled that the guidelines are, in their entirety, now merely advisory. You can come to this conclusion if you don't believe the guidelines severable or the courts to have the power to empanel sentencing juries. Still, too many courts seem just a little too eager to stretch past the other two possibilities in order to reach this conclusion. Mind you, I find the federal guidelines repugnant and would prefer this solution myself; I just don't think it is the most valid of options (see here).
The worst of the worst have been those courts which impute upon the prosecution a "right" to the upward departures (phrased as fairness). Following this line of reasoning when sentencing does not have upward departures the guidelines are constitutional. However, when the sentence would have upward departures it is unfair to deny those to the prosecution. Therefore, in those applications only the guidelines are unseverable and unconstitutional. Thus the upward barrier is removed and the judge is allowed to sentence using the guidelines - with the upward departure included - as a "recommendation."
Personally, I don't break this down as liberal/conservative. I think a lot of conservative judges can (and probably will) come to one of the first three conclusions. The fourth is nothing more than a pro-prosecution position. In fact, it would be pretty easy to characterize that as legislating from the bench; a total rewrite of the law.
I figure the S.Ct. is going to have to hear this in the next term. It will be interesting to see which theory it adopts.
[addendum] All Deliberate Speed also has an excellent post which gives an example of why pre-Blakely sentencing was so wrong.
Cited in a Brief
Ann Skove, over at the National Center for State Courts, has been kind enough to cite this blawg in "Blakley v. Washington: Implications for State Courts." See fn. 23.
Many thanks.
Many thanks.
A Brave New Indigent World
Here's what is being put in place instead of increasing fees. And here's more about it.
Thanks for the heads up from BD.
Thanks for the heads up from BD.
22 July 2004
Moments of a Trial
A fellow Defense attorney clued me in to the fact that he had a very interesting case. Having finished my cases I go up to the Circuit Court to watch the trial. The charge is striking a police officer, a class 6 felony carrying up to 5 years in prison and a mandatory 6 months which the judge cannot suspend.
The trial’s start is delayed because the deputies cannot get 20 people to report to court (the bare minimum which must report for a jury trial). When it becomes obvious that 20 people are not going to report the Defendant, who had already spent several months in jail waiting for his trial date, waives the jury rather than wait another month or two for the next possible trial date.
Finally, everyone is ready. The prosecutor is sitting in his seat with the 200 lb., solid muscle officer sitting next to him. The judge comes out and takes his seat. Finally, the Defendant is brought in. I say brought in because he was wheeled into the courtroom in a wheelchair. The Defendant weighs maybe 100 lbs. soaking wet, suffers from cerebral palsy, and has almost no muscle strength.
As the trial progresses the story unfolds something like this: Police respond to a domestic disturbance call. When they arrive they find Defendant on a bed in the apartment. They search Defendant and then go to talk to the woman. While the training officer is talking to her the junior officer is watching Defendant. Defendant picks up his cigarettes and sticks them in his pocket. The officer makes him take them back out because Defendant had already been searched. At this point Defendant takes a pen out of his pants and says something to the effect of “I’ll kill you.” The officer is on the other side of the room and realizes that the guy can barely lift the pen much less make a lunge at him so he just tells Defendant to put it down. Defendant does.
Then the officers decide they must arrest the guy. At first they try to get him to walk out to the car but he only make it a few feet before his muscles give out. Then they decide to carry him. They handcuff his hands in front of him. The senior officer grabs his feet while the junior officer grabs him under the arms. They get a few feet outside the door when Defendant’s hand jerked up and hit the officer straight in the neck. From that point testimony went something like this:
Up to this point everyone in the courtroom is wondering why the prosecutor had gone forward on this case. While it’s obvious a battery took place it’s also kind of embarrassing to pursue a case wherein a young, strapping police officer claims to have been set upon by an older wheelchair bound cripple. Then, during sentencing arguments the prosecutor introduces the Defendant’s prior record. It has 6 assault & batteries, two of which are against police officers. It appears that this guy had a pattern of doing this sort of thing and then hiding behind his condition. The judge looked a little surprised and sentenced the man to 12 months on the misdemeanor.
The trial’s start is delayed because the deputies cannot get 20 people to report to court (the bare minimum which must report for a jury trial). When it becomes obvious that 20 people are not going to report the Defendant, who had already spent several months in jail waiting for his trial date, waives the jury rather than wait another month or two for the next possible trial date.
Finally, everyone is ready. The prosecutor is sitting in his seat with the 200 lb., solid muscle officer sitting next to him. The judge comes out and takes his seat. Finally, the Defendant is brought in. I say brought in because he was wheeled into the courtroom in a wheelchair. The Defendant weighs maybe 100 lbs. soaking wet, suffers from cerebral palsy, and has almost no muscle strength.
As the trial progresses the story unfolds something like this: Police respond to a domestic disturbance call. When they arrive they find Defendant on a bed in the apartment. They search Defendant and then go to talk to the woman. While the training officer is talking to her the junior officer is watching Defendant. Defendant picks up his cigarettes and sticks them in his pocket. The officer makes him take them back out because Defendant had already been searched. At this point Defendant takes a pen out of his pants and says something to the effect of “I’ll kill you.” The officer is on the other side of the room and realizes that the guy can barely lift the pen much less make a lunge at him so he just tells Defendant to put it down. Defendant does.
Then the officers decide they must arrest the guy. At first they try to get him to walk out to the car but he only make it a few feet before his muscles give out. Then they decide to carry him. They handcuff his hands in front of him. The senior officer grabs his feet while the junior officer grabs him under the arms. They get a few feet outside the door when Defendant’s hand jerked up and hit the officer straight in the neck. From that point testimony went something like this:
Officer: “At that point I put him on the ground. While on the ground he was flailing about so then I capstunned him. He continued to move around and his hand latched onto a rake handle so I put my foot in the center of his back and told him I didn’t think that was a good idea.”Cross examination:
D. Attorney: “When you put him down did you use any force?At the end of the trial it is obvious that the Defendant struck the officer. The judge looks down from his bench and asks the prosecutor, “Don’t you think he got punished when they capstunned while he was lying on the ground?” Prosecutor: “(pause) Maybe so sir but we still ask you to convict him of the felony.” Judge: “I’ll convict him but all you’re getting is misdemeanor assault.”
Officer: “Yes, a little.”
Judge: “Do you mean to say you dropped him?”
Officer: “No sir, I put him down.”
Up to this point everyone in the courtroom is wondering why the prosecutor had gone forward on this case. While it’s obvious a battery took place it’s also kind of embarrassing to pursue a case wherein a young, strapping police officer claims to have been set upon by an older wheelchair bound cripple. Then, during sentencing arguments the prosecutor introduces the Defendant’s prior record. It has 6 assault & batteries, two of which are against police officers. It appears that this guy had a pattern of doing this sort of thing and then hiding behind his condition. The judge looked a little surprised and sentenced the man to 12 months on the misdemeanor.
Possession and Principals in the 2d Degree (part 2)
The judge in the case decided that the male driver was not guilty.
I agree with the judge. I think that the purchase of the item for the girls to use in smoking was an act in furthering of use of the marijuana. In actuality, it was an act in the furtherance of the ending of the possession of marijuana by encouraging its destruction. So the guy was in the right; he was trying to assist the young ladies in destroying and therefore ending their possession of an illegal substance.
Yep, he was just a saint at heart - Pure as the windblown snow - Innocent as a newborn babe - An all around gentleman trying to extract those poor unenlightened ladies from their plight - A swell guy.
I agree with the judge. I think that the purchase of the item for the girls to use in smoking was an act in furthering of use of the marijuana. In actuality, it was an act in the furtherance of the ending of the possession of marijuana by encouraging its destruction. So the guy was in the right; he was trying to assist the young ladies in destroying and therefore ending their possession of an illegal substance.
Yep, he was just a saint at heart - Pure as the windblown snow - Innocent as a newborn babe - An all around gentleman trying to extract those poor unenlightened ladies from their plight - A swell guy.
21 July 2004
Interesting Bowman Tidbit
I just found out (via e-mail from ____) that Professor Bowman was a visiting faculty member at my law school (Washington & Lee) in the 94/95 school year, teaching CrimLaw and CrimPro. Then, in a gigantic downward step, he left and went to the Sentencing Commission. ;-)
Possession and Principals in the 2d Degree
Watching a trial today another Defense attorney and I were arguing over whether the Defendant was guilty as a principal in the 2d degree of possession of marijuana. I thought I'd put it up here for ya'll to see (and perhaps comment upon).
Facts: A street drugs officer is sitting in a parking lot when a car with two women passengers and one male driver passes by. As the car passes the officer, the front female passenger takes a hit off of a plastic bottle. The officer pulls the car over and, as he walks to the car, smells marijuana. He arrests all in the car. Upon a search, all the marijuana and paraphernalia is found on the female. The officer testifies that the male admitted to smoking marijuana earlier in the day and that he admitted he bought the bottle so that "they" could smoke the marijuana.
This was interpreted (under the beyond a reasonable doubt standard) as "the guy bought the bottle so the girls could smoke their marijuana."
Law: It is well settled in Virginia that possession cannot be proven by mere proximity. So it was pretty clear that the guy wasn't a principal in the first degree. This left principal in the 2d degree (which carries the same penalty and need not be specifically alleged). Groot defines principal in the 2d as such:
When the Defense attorney got up I turned to the other lawyer and asked why would anybody ask questions at that point because the case was already won. The other attorney disagreed and asserted that there was enough evidence for a conviction.
I'll post the outcome tomorrow. In the meantime opinions and/or analysis are welcome.
Facts: A street drugs officer is sitting in a parking lot when a car with two women passengers and one male driver passes by. As the car passes the officer, the front female passenger takes a hit off of a plastic bottle. The officer pulls the car over and, as he walks to the car, smells marijuana. He arrests all in the car. Upon a search, all the marijuana and paraphernalia is found on the female. The officer testifies that the male admitted to smoking marijuana earlier in the day and that he admitted he bought the bottle so that "they" could smoke the marijuana.
This was interpreted (under the beyond a reasonable doubt standard) as "the guy bought the bottle so the girls could smoke their marijuana."
Law: It is well settled in Virginia that possession cannot be proven by mere proximity. So it was pretty clear that the guy wasn't a principal in the first degree. This left principal in the 2d degree (which carries the same penalty and need not be specifically alleged). Groot defines principal in the 2d as such:
To constitute a principal in the second degree one must be guilty of some overt act, or he must share the criminal intent of the party who commits the crime. When the alleged accomplice is actually present and performs overt acts of assistance or encouragement, he has communicated to the perpetrator his willingness to have the crime proceed and has demonstrated that he shares the criminal intent of the prepretrator.Note that mere presence when the crime occurs is not enough.
When the Defense attorney got up I turned to the other lawyer and asked why would anybody ask questions at that point because the case was already won. The other attorney disagreed and asserted that there was enough evidence for a conviction.
I'll post the outcome tomorrow. In the meantime opinions and/or analysis are welcome.
Around the Web
Criminal Appeal points out that the feds may take over California's prison system because the State cannot fix it (and may be acting to make it worse).
Stop the Bleating points to an article which shows how bad things can be for a Defendant when the judge is bad. This is downright scary. [addendum] No, I don't blame the prosecutor for being somewhat myopic. In an adversarial process we all tend to get that way sometimes. But the judge is supposed to ensure that the whole picture is presented.
May It Please the Court points to a group of guys getting charged with escape because they made a beer run - from the jail.
Stop the Bleating points to an article which shows how bad things can be for a Defendant when the judge is bad. This is downright scary. [addendum] No, I don't blame the prosecutor for being somewhat myopic. In an adversarial process we all tend to get that way sometimes. But the judge is supposed to ensure that the whole picture is presented.
May It Please the Court points to a group of guys getting charged with escape because they made a beer run - from the jail.
20 July 2004
ADS Comments on Bowman's Blakely Proposal
The Bowman proposal disturbs me. It's all Feeney and no check on a judge who would sentence disproportionately high. The abuse of discretion proposal for anything over the bottom by 25% cannot have any teeth or it would violate Blakely itself.
Anyway, aside from equity concerns, All Deliberate Speed is dubious that the Bowman proposal and Harris would stand a modern constitutional challenge.
Anyway, aside from equity concerns, All Deliberate Speed is dubious that the Bowman proposal and Harris would stand a modern constitutional challenge.
Sniper Appeal (Muhammad)
The attorneys for Muhammad have filed their appeal:
Now, I understand that in a particular case the prosecutor's theory might have to change a couple times pre-trial or mid-trial because of new evidence. However, trying one person on a particular theory and another on a theory the prosecutor knows conflicts with the first does not come across as just.
Not that I expect the result to be overruled; I just want to see how twisted the reasoning gets to uphold the decision.
In a brief supporting Muhammad's appeal, his lawyers alleged 102 errors in the trial and sentencing, including the inconsistent prosecution theories.I'm interested to see how that argument is dealt with. As I remember it (harkening back to law school) in federal interpretation the State is viewed as one body rather than a series of subordinate entities (counties, townships, cities). As well, the prosecutor (the representative of truth, justice, and all that is ma'at in the universe) would seem to be required to adopt a specific theory as to reality.
The state argued in the Muhammad case that he controlled his younger accomplice, but it claimed in the Malvo case that the teenager was "an independent thinker, and not under the sway of John Muhammad," defense lawyers Jonathan Shapiro and Peter Greenspun wrote.
"Pressing these absolutely contradictory positions in an attempt to win convictions and a death sentence runs afoul of the Due Process clause," they said in the 140-page brief.
Now, I understand that in a particular case the prosecutor's theory might have to change a couple times pre-trial or mid-trial because of new evidence. However, trying one person on a particular theory and another on a theory the prosecutor knows conflicts with the first does not come across as just.
Not that I expect the result to be overruled; I just want to see how twisted the reasoning gets to uphold the decision.
Around the Web
I respectfully dissent points to difficulties that are coming from the fact that one lawyer grossed more than the chief justice of North Carloina. Of course, as IRD points out, no one bothers to subtract the lawyer's rent, secretary, double taxes, office materials, etc. out of the amount. Somehow I don't think the chief justice has to pay those expenses.
Waddling Thunder transcribes an appellate argument in England.
C&F is dissecting the Ken Lay case all week.
Waddling Thunder transcribes an appellate argument in England.
C&F is dissecting the Ken Lay case all week.
Big Brother Cometh
Because of concerns over a database meant to combine several State's information and keep an eye on those pesky citizens some States won't allow the information to be put on one computer. Instead, they will keep all the info on their own computers and just allow it to be searched at will.
Yeah, that makes all the difference in world. I feel safer now. Don't you?
Yeah, that makes all the difference in world. I feel safer now. Don't you?
19 July 2004
Virginia Court of Appeals 07/13
Hitt v. Commonwealth - Subject: Can a bedroom within a house constitute a "dwelling house" for the purpose of the burglary statute?
Facts: Defendant had permission to be in a house. The bedroom was locked and the Defendant broke into it.
"The legislature intended to preserve the crime of common law burglary as an offense against habitation." The place of habitation is the house as a whole, not a bedroom in that house. The Legislature has chosen at times to extend the traditional common law notion of "dwelling house," but it has not extended it to encompass a room within a house.
Facts: Defendant had permission to be in a house. The bedroom was locked and the Defendant broke into it.
"The legislature intended to preserve the crime of common law burglary as an offense against habitation." The place of habitation is the house as a whole, not a bedroom in that house. The Legislature has chosen at times to extend the traditional common law notion of "dwelling house," but it has not extended it to encompass a room within a house.
United States v. Tucker (4th Cir; 14 July 2004)
Subject: Can a conspiracy be found in a situation wherein the Defendant could not be convicted of the completed act?
PDF here
To convict of conspiracy . . . the government is only required to prove an agreement to violate the law, an overt act, and willingness to participate in the conspiracy. Proof of a conspiracy does not require proof that the object of the conspiracy was achieved or could have been achieved, only that the parties agreed to achieve it.[comment] Pretty straight forward.
PDF here
18 July 2004
Trial Prep
I don't expect to be able to post much today. I have a kid going on trial for malicious wounding tomorrow (5-20 years). He's not really guilty of the charge but I cannot explain why because I know the prosecutors from that jurisdiction read this blog (Hi guys).
Anyway, today I will be mired in trial prep. Ya'll have a good day now.
Anyway, today I will be mired in trial prep. Ya'll have a good day now.
17 July 2004
Blakely Trends
There is no way I can keep up with the frantic pace of all the Blakely happenings and so I have left that generally to SL&P and Blakely Blog. Still, I have been watching and here are the positions as I see them.
Blakely Renders Only Upward Departures Unconstitutional
Sever the Unconstitutional Portion: Blakely renders factors neither stipulated to nor found by a jury which will increase a sentence unconstitutional. Nevertheless, the guidelines remain constitutional. Therefore, the guidelines must be applied with those upward departures shorn away.
[comment] This seems to me to be the narrowest and most accurate reading of Blakely. Sure, in the short run it causes some problems as people who were not properly indicted get lesser sentences. But when the prosecutors very quickly adapt the situation will settle back down to pretty much where it was before with but few things really changed (like punishing people for testifying at their own trial).
Blakely Renders the Guidelines Unconstitutional as a Whole
Empanel a Jury: Blakely renders factors neither stipulated to nor found by a jury which will increase a sentence unconstitutional. Since this part of the guidelines cannot be severed the judge should impanel a sentencing jury or set up a bifurcated trial
[comment] This strikes me as an eminently viable solution. The only problem is that I haven't seen anyone explain where the courts are authorized to implement it.
Discretionary Guidelines: Blakely renders factors neither stipulated to nor found by a jury which will increase a sentence unconstitutional. Since this part of the guidelines cannot be severed the guidelines as a whole are out. They should still be worked up and considered but they are no longer determinative, merely advisory.
[comment] If this is viewed as going back to entirely indeterminate sentencing it seems valid if the unseverability is correct. However, it strikes me as going a step too far. I've seen no valid reason for not severing the offending portions of the guidelines and therefore throwing them out entirely. Both of the solutions above work far better.
Unsupportable Positions
Schizophrenia: Blakely renders factors neither stipulated to nor found by a jury which will increase a sentence unconstitutional. Therefore, whenever the guidelines would be moved upward by one of these factors they are unconstitutional and the guidelines are entirely out and sentencing is indeterminate using the guidelines as a suggestion. However, when there is no Bakely issue the guidelines magically transform back to constitutionality and are their same old determinative selves.
[comment] An obviously unsupportable position. A statute, as viewed through a constitutional lens, is not a light switch to be turned on and off so that it is applied only when the application would be constitutional. If the guidelines are in toto unconstitutional and therefore dimissed they are in toto unconstitutional and therefore and therefore dismissed. A person who is effected in an unconstitutional manner may be required in order to challenge the guidelines; nevertheless, that does not mean they survive once declared unconstitutional.
The government's attempt to preserve its power at all costs by advocating this position is understandable, though not laudable. The adoption of this position by a number of judges has just been bewildering.
Head in the Sand: The Supreme Court expressly passed no judgement on the federal guidelines and therefore they remain constitutional.
[comment] Gotta say, I was really, really surprised that an appellate court would adopt this position. The 5th Circuit did; I cannot explain it.
---------------------------------------------------------
As an aside, I am reading of lowered sentences in blawgs and news articles but I am also hearing of greater punishments from certain Defense oriented mail lists. Those involved in federal work are still somewhat in chaos from this.
You'll also remember that two posts back I asserted that federal criminal sentencing does not "pierce the consciousness" of people not involved in the federal system. I can pretty much confirm that none of my clients have a clue about what's currently going on in the federal system. Clients are on it the instant something big happens in the Commonwealth's courts or the Legislature and rumors abound (every year we Defense attorneys spend a fair bit of time explaining to clients that certain bills didn't pass the Legislature and yes, they will still have to serve 85% of their sentences). There's been nary a peep about Blakely and I would have expected some wild rumor by now. Heck, even most of the attorneys do not know about Blakely. Since few have a significant federal practice and Blakely has no application in Virginia they just don't have a reason to pay attention to the case.
For more specifics on day-to-day Blakely go over to SL&P or Blakely Blog.
Blakely Renders Only Upward Departures Unconstitutional
Sever the Unconstitutional Portion: Blakely renders factors neither stipulated to nor found by a jury which will increase a sentence unconstitutional. Nevertheless, the guidelines remain constitutional. Therefore, the guidelines must be applied with those upward departures shorn away.
[comment] This seems to me to be the narrowest and most accurate reading of Blakely. Sure, in the short run it causes some problems as people who were not properly indicted get lesser sentences. But when the prosecutors very quickly adapt the situation will settle back down to pretty much where it was before with but few things really changed (like punishing people for testifying at their own trial).
Blakely Renders the Guidelines Unconstitutional as a Whole
Empanel a Jury: Blakely renders factors neither stipulated to nor found by a jury which will increase a sentence unconstitutional. Since this part of the guidelines cannot be severed the judge should impanel a sentencing jury or set up a bifurcated trial
[comment] This strikes me as an eminently viable solution. The only problem is that I haven't seen anyone explain where the courts are authorized to implement it.
Discretionary Guidelines: Blakely renders factors neither stipulated to nor found by a jury which will increase a sentence unconstitutional. Since this part of the guidelines cannot be severed the guidelines as a whole are out. They should still be worked up and considered but they are no longer determinative, merely advisory.
[comment] If this is viewed as going back to entirely indeterminate sentencing it seems valid if the unseverability is correct. However, it strikes me as going a step too far. I've seen no valid reason for not severing the offending portions of the guidelines and therefore throwing them out entirely. Both of the solutions above work far better.
Unsupportable Positions
Schizophrenia: Blakely renders factors neither stipulated to nor found by a jury which will increase a sentence unconstitutional. Therefore, whenever the guidelines would be moved upward by one of these factors they are unconstitutional and the guidelines are entirely out and sentencing is indeterminate using the guidelines as a suggestion. However, when there is no Bakely issue the guidelines magically transform back to constitutionality and are their same old determinative selves.
[comment] An obviously unsupportable position. A statute, as viewed through a constitutional lens, is not a light switch to be turned on and off so that it is applied only when the application would be constitutional. If the guidelines are in toto unconstitutional and therefore dimissed they are in toto unconstitutional and therefore and therefore dismissed. A person who is effected in an unconstitutional manner may be required in order to challenge the guidelines; nevertheless, that does not mean they survive once declared unconstitutional.
The government's attempt to preserve its power at all costs by advocating this position is understandable, though not laudable. The adoption of this position by a number of judges has just been bewildering.
Head in the Sand: The Supreme Court expressly passed no judgement on the federal guidelines and therefore they remain constitutional.
[comment] Gotta say, I was really, really surprised that an appellate court would adopt this position. The 5th Circuit did; I cannot explain it.
---------------------------------------------------------
As an aside, I am reading of lowered sentences in blawgs and news articles but I am also hearing of greater punishments from certain Defense oriented mail lists. Those involved in federal work are still somewhat in chaos from this.
You'll also remember that two posts back I asserted that federal criminal sentencing does not "pierce the consciousness" of people not involved in the federal system. I can pretty much confirm that none of my clients have a clue about what's currently going on in the federal system. Clients are on it the instant something big happens in the Commonwealth's courts or the Legislature and rumors abound (every year we Defense attorneys spend a fair bit of time explaining to clients that certain bills didn't pass the Legislature and yes, they will still have to serve 85% of their sentences). There's been nary a peep about Blakely and I would have expected some wild rumor by now. Heck, even most of the attorneys do not know about Blakely. Since few have a significant federal practice and Blakely has no application in Virginia they just don't have a reason to pay attention to the case.
For more specifics on day-to-day Blakely go over to SL&P or Blakely Blog.
Continuing the Punishment Discussion
A commentator on my previous post stated:
It's a solution which is deceptively simple yet has great implications and is not politically viable.
(1) It would cause a "lost generation." In short order, a large number of young males would suddenly be removed from our society for a long period of time. Assuming the patterns I see among my clients hold true, a large majority of these young men would be Black.
(2) Costs of maintaining all those people in prison would be a heavy burden on governmental budgets.
(3) The sentences would have to be so large that they would be draconian and contradict our sense of what an appropriate sentence should be. I'm talking residue=2 years, 1 hit=5 years, 2+ hits weight=10 years, 2d conviction=15 years, and possession with intent 15 years (30 years for a second offense). Do I think that any of those sentences are proportionate, fair, and just? No. But that would be the point.
(4) As dealers and users realize that they are facing massive sentences the level of violence would rise (probably exponentially). Currently, dealers/users know that carrying a gun with drugs can lead to large penalties and therefore, a surprising number do not. With these kind of sentences they are not likely to worry much about the gun charge and much more likely to fight back when the police try to take them.
(5) It would reach into the middle class (you know, the voters). I don't know what percentage of middle and upper middle class kids and young adults mess around with drugs experimentally or are social users but I know they are out there. I suspect the number is high enough that when they started getting busted and sent away for long periods of time the disproportionate sentences would be noticed and cause an uproar. After all, it might be okay to send "Reb" and "Biggy-S" (you know, "those people") off to prison for 10 years but not Robert Fensworth IV, college junior, pre-law, elder son of a hardworking upper-middle class family which has all the right connections.
Of course, at least at first there would be the normal discretionary enforcement concentrating on "those people."1 However, after a couple of years "those people" are going to start getting scarce and law-enforcement is going to have to hunt somewhere (or start drawing down force levels and that ain't likely).
------------------------------
Why would this work? Because in a very short order it would decimate both the chain of supply and provide a strong disincentive for anyone using or beginning to use. Everyone would be screaming bloody murder about how wrong it is that Joe is going to prison for 10 years and how that is absolutely an unfair punishment level (because it is; this doesn't work if the punishment is proportionate). As I defended Joe for the 4th time as a court appointed client (yes frequent fliers are a rule rather than an exception) on a personal level in defending this poor guy who never really hurt anyone, I'd be just as upset. In order for this to work at a macro level it would have to be unjust over and over and over again at the micro level.
Personally, I don't think this can ever be the system put in place. The economic and social impact would be too much. The strength of will it would take to lock up (and pay for) an even greater portion of our population than we currently do for much longer than we currently do just isn't there. As well, imagine the backlash from everybody under the sun. Not only the usual suspects (ACLU, NACDL, NAACP, etc.) would step forward to defend people's rights not to be trampled under a system dedicated to sacrificing them in order to reach a better world; there would most likely be a backlash among the voters as people they knew started going to prison for loooonnngg periods of time (the ends justifies the means not being a popular sentiment when it applies to you and yours).
So, we revert to doing things at a micro level. Programs, like drug court, are put in place to help the individual get out of the cycle - and they seem to lower the recidivism rate somewhat. The judge (in the article noted in the last post) is probably right in that lesser or non-jail sentences for small time offenders accomplish more than sending them away. People who have not acclimatized to jail fear it far more than those who have gotten used to it and act accordingly. As well, I truly believe that less jail time would stop the cross-pollination which allows many a small dealer to become a mid-level dealer (or more); however, I must admit that I think the criminal system would evolve other avenues were this one denied. If you cannot, or will not, make the sacrifices which would be needed to accomplish large scale change you must work within the current system to minimize the harm to society at large by diverting as many as possible away from the path they would otherwise end up on.
--------------------
1 Don't believe discretionary enforcement occurs? One example often cited is the difference between the punishment for powder and crack cocaine in the federal system. However, I prefer even more down to earth examples. Go check and see where your local police do their DUI checkpoints. I'd bet dollars to doughnuts that a great majority of them don't take place on the one road leading into "Charlesworth on the River, A Gated Community." They take place at roads leading to "Roadrunner Trailer Park." Examples of this sort abound.
Actually, you make a good case for real punishment for the small users -- as long as the demand is there, new dealers like you say will step in to fill the demand. How do you deter the demand?Well, the answer would be to impose massive penalties for possession as well as dealing. Perhaps someone with a first time possession charge could be ordered into a program like drug court but failure would be punished just as massively or more.
It's a solution which is deceptively simple yet has great implications and is not politically viable.
(1) It would cause a "lost generation." In short order, a large number of young males would suddenly be removed from our society for a long period of time. Assuming the patterns I see among my clients hold true, a large majority of these young men would be Black.
(2) Costs of maintaining all those people in prison would be a heavy burden on governmental budgets.
(3) The sentences would have to be so large that they would be draconian and contradict our sense of what an appropriate sentence should be. I'm talking residue=2 years, 1 hit=5 years, 2+ hits weight=10 years, 2d conviction=15 years, and possession with intent 15 years (30 years for a second offense). Do I think that any of those sentences are proportionate, fair, and just? No. But that would be the point.
(4) As dealers and users realize that they are facing massive sentences the level of violence would rise (probably exponentially). Currently, dealers/users know that carrying a gun with drugs can lead to large penalties and therefore, a surprising number do not. With these kind of sentences they are not likely to worry much about the gun charge and much more likely to fight back when the police try to take them.
(5) It would reach into the middle class (you know, the voters). I don't know what percentage of middle and upper middle class kids and young adults mess around with drugs experimentally or are social users but I know they are out there. I suspect the number is high enough that when they started getting busted and sent away for long periods of time the disproportionate sentences would be noticed and cause an uproar. After all, it might be okay to send "Reb" and "Biggy-S" (you know, "those people") off to prison for 10 years but not Robert Fensworth IV, college junior, pre-law, elder son of a hardworking upper-middle class family which has all the right connections.
Of course, at least at first there would be the normal discretionary enforcement concentrating on "those people."1 However, after a couple of years "those people" are going to start getting scarce and law-enforcement is going to have to hunt somewhere (or start drawing down force levels and that ain't likely).
------------------------------
Why would this work? Because in a very short order it would decimate both the chain of supply and provide a strong disincentive for anyone using or beginning to use. Everyone would be screaming bloody murder about how wrong it is that Joe is going to prison for 10 years and how that is absolutely an unfair punishment level (because it is; this doesn't work if the punishment is proportionate). As I defended Joe for the 4th time as a court appointed client (yes frequent fliers are a rule rather than an exception) on a personal level in defending this poor guy who never really hurt anyone, I'd be just as upset. In order for this to work at a macro level it would have to be unjust over and over and over again at the micro level.
Personally, I don't think this can ever be the system put in place. The economic and social impact would be too much. The strength of will it would take to lock up (and pay for) an even greater portion of our population than we currently do for much longer than we currently do just isn't there. As well, imagine the backlash from everybody under the sun. Not only the usual suspects (ACLU, NACDL, NAACP, etc.) would step forward to defend people's rights not to be trampled under a system dedicated to sacrificing them in order to reach a better world; there would most likely be a backlash among the voters as people they knew started going to prison for loooonnngg periods of time (the ends justifies the means not being a popular sentiment when it applies to you and yours).
So, we revert to doing things at a micro level. Programs, like drug court, are put in place to help the individual get out of the cycle - and they seem to lower the recidivism rate somewhat. The judge (in the article noted in the last post) is probably right in that lesser or non-jail sentences for small time offenders accomplish more than sending them away. People who have not acclimatized to jail fear it far more than those who have gotten used to it and act accordingly. As well, I truly believe that less jail time would stop the cross-pollination which allows many a small dealer to become a mid-level dealer (or more); however, I must admit that I think the criminal system would evolve other avenues were this one denied. If you cannot, or will not, make the sacrifices which would be needed to accomplish large scale change you must work within the current system to minimize the harm to society at large by diverting as many as possible away from the path they would otherwise end up on.
--------------------
1 Don't believe discretionary enforcement occurs? One example often cited is the difference between the punishment for powder and crack cocaine in the federal system. However, I prefer even more down to earth examples. Go check and see where your local police do their DUI checkpoints. I'd bet dollars to doughnuts that a great majority of them don't take place on the one road leading into "Charlesworth on the River, A Gated Community." They take place at roads leading to "Roadrunner Trailer Park." Examples of this sort abound.
15 July 2004
Do Heavy Guideline Sentences or Mandatory Minimums Work?
Not according to this article:
Example: Drug Distribution
While I've never engaged in any kind of study (and doubt an accurate one could be done), from where I sit as a Defense attorney the social-work environment within which your basic street dealer exists is amazingly redundant. When I first started practicing I was surprised to find that no matter how many times police rounded up the dealers in a particular area it had absolutely no effect on the ability of my clients to get drugs from exactly the same place. As my practice progressed into the defense of those dealing I began to glean the why of this.
At least in Virginia, those who deal/use drugs tend to form loose-knit, somewhat overlapping groups. The trick is to stay connected closely enough that someone can take a dealer's place if he is removed (usually by incarceration) but not to become affiliated closely enough that the police can get everyone as a group. In the city this seems to be done by groups of "friends" who are usually located close enough to support one another. Sometimes this rises to the level of "gangs" but that is a dangerous development because once the association rises to that level it is like painting a bullseye on those participating. In rural areas where everyone knows everyone the grouping seems to devolve on certain families. Generally, everybody in the county knows that the Smiths are dealers but the Smiths know every single deputy by name (the young men were on the same high school football team even). Snitches and leads are harder to develop because of the level of interpersonal knowledge among locals and the instant distrust of the sudden appearance of a stranger; after all, if a white "phone company van" is out on a country road where only the Smiths live and there ain't any phone problems they will probably notice. As well, the local sheriff seldom has the money or manpower to put together a team to break the family.
These groups are an important part of the business because attrition and reacquisition of members is constant. There is always someone going to jail or prison. When that person goes others step in to keep the flow steady (and quite often to take care of the other guy's girlfriend, kid, mother, etc.). There is also always someone getting out of prison needing people to come back to who will get him back on his feet; the guy coming out of jail also often brings new sources and contacts which he has made inside. The fact that multiple groups overlap somewhat is also important. Sometimes the police are either lucky or put in tons of hard work and roll up most of a particular grouping. Then friends who are peripherally attached to the group step in with their group connections to continue the business; assuming that the first group isn't released en masse when members of that group come out they don't really have any massive loyalty to a particular group and usually reintegrate successfully.
Now, the dealers, their families, et al. engage in a cost benefit analysis (though they wouldn't phrase it that way). The expectation is that people will get caught every so often and cycle through terms of incarceration.1 The typical 6 or 8 months really has little or no effect on the system at all. If a sentence is 2 years or less it is annoying but can be handled. Above two years things start to get painful and five or more years is definitely a serious disruption. The type of time faced in federal court is devastating because it takes the dealer entirely out of the system.
Why then don't the federal sentences act as a major deterrent? Because they don't pierce the consciousness of the local street dealer and his family. The dealers know well what kind of time they will probably face in the courts of the Commonwealth and their activities take that into consideration. Their family and friends are constantly in and out of Virginia's courts for one matter or another. On the other hand, most of them have no clue where the federal courthouse is and no comprehension of the penalties they can face there. When these people are picked up, the first conversation wherein you explain federal sentencing to them is always painful. The feds just aren't active enough to make an impression and therefore aren't factored in. And why would they think that one time out of fifty the feds were going to be the ones involved in basic street sweeps, arresting intrastate dealers? I certainly didn't before these mid to low level dealers started getting assigned to me.
So, if government is serious about wanting to make an impact either the Commonwealth would have to impose draconian drug sentencing similar to the federal sentences or the feds would have to massively increase their activity. For a lot of reasons (mostly economic) I doubt the viability of either approach. I just don't know if Virginia could take the economic hit from massive long term incarceration for basic drug dealers (unless, maybe, we stopped sending all those people to prison for driving offenses).2 The feds are impressive when they concentrate their almost unchallengable power in one place but were they to spread their force throughout all jurisdictions in order to hit everyone hard enough to get the idea of federal incarceration in everyone's mind they would probably be too diffuse to accomplish the mission. Of course, the feds could coopt a lot of local law enforcement to do the job for them and then prosecute in federal court but that would be a pretty clear violation of the principles of federalism and we all know that our government wouldn't discard federalism just because it got in the way of the exercise of raw power.3
With all that in mind, the judge's proposals would seem to have merit. While I don't believe they would be as successful in the long term as massively increased penalties, they can be effective. This is the kind of thought that has led to the development of drug courts and programs to help people deal with their mental issues. Are these programs abused? Sure, some try to cheat their way through; nevertheless, the programs offer a far better chance at turning a minor offender back into a beneficial member of society than warehousing him in a prison does.
They are also far more cost effective and less disruptive, at least in the short run.
This is running long and I've got to get some sleep tonight. As always, I remind ya'll that this is an incomplete thought which would probably take a lot longer to flush out completely. Feel free to discuss it among yourselves . . .
1 Please note, I don't actually think the group is an organized entity calculating this way. It is more of an evolved social grouping formed into what it is by its constant interaction with law enforcement and the courts. No one "expects" or wants to go to prison. It is just that jail/prison is not a debilitating thing.
2 Were Virginia to go this route it should also prepare for a more violent future. Dealers who believe they are going to prison for a short time are likely to just go. Those who believe that they are going away for sentences which are often effectively life sentences will fight back. I cannot place my hands on the statistics right now but California's 3 strikes law is supposed to have caused a significant upswing in violence.
3 Yes, that's my tongue you see firmly planted in my cheek. However, in actuality I think there is a lot of local law enforcement going over the heads of local prosecutors, judges and juries and trying to get the feds to take cases because they know how imbalanced the federal system is.
Incapacitation [incarceration] works very well during the period of incapacitation. Measured by impact on recidivism (after release), though, anything longer than six months is probably counterproductive. Shock incarceration, shock probation, scared straight, D.A.R.E., and boot camp programs do not work and may well do more harm than good.I think this is probably correct in the modern social environment but does not reflect what would happen if sentences were uniformly massive. However, unless something significant changes sentences will never be uniformly massive.
. . . .
One shortcoming of the movement towards increased incarceration through reduced judicial discretion is that incapacitation is only effective until the defendant is returned to the community. There are other problems, of course: the broad brush of these measures sweeps into prison offenders whose incarceration is not only not necessary for public safety, but may increase the danger they represent to public safety once they are released. Moreover, there are unintended collateral consequences and enormous public expenditures that follow from our ongoing experiment with "mass incarceration."
----------
Example: Drug Distribution
While I've never engaged in any kind of study (and doubt an accurate one could be done), from where I sit as a Defense attorney the social-work environment within which your basic street dealer exists is amazingly redundant. When I first started practicing I was surprised to find that no matter how many times police rounded up the dealers in a particular area it had absolutely no effect on the ability of my clients to get drugs from exactly the same place. As my practice progressed into the defense of those dealing I began to glean the why of this.
At least in Virginia, those who deal/use drugs tend to form loose-knit, somewhat overlapping groups. The trick is to stay connected closely enough that someone can take a dealer's place if he is removed (usually by incarceration) but not to become affiliated closely enough that the police can get everyone as a group. In the city this seems to be done by groups of "friends" who are usually located close enough to support one another. Sometimes this rises to the level of "gangs" but that is a dangerous development because once the association rises to that level it is like painting a bullseye on those participating. In rural areas where everyone knows everyone the grouping seems to devolve on certain families. Generally, everybody in the county knows that the Smiths are dealers but the Smiths know every single deputy by name (the young men were on the same high school football team even). Snitches and leads are harder to develop because of the level of interpersonal knowledge among locals and the instant distrust of the sudden appearance of a stranger; after all, if a white "phone company van" is out on a country road where only the Smiths live and there ain't any phone problems they will probably notice. As well, the local sheriff seldom has the money or manpower to put together a team to break the family.
These groups are an important part of the business because attrition and reacquisition of members is constant. There is always someone going to jail or prison. When that person goes others step in to keep the flow steady (and quite often to take care of the other guy's girlfriend, kid, mother, etc.). There is also always someone getting out of prison needing people to come back to who will get him back on his feet; the guy coming out of jail also often brings new sources and contacts which he has made inside. The fact that multiple groups overlap somewhat is also important. Sometimes the police are either lucky or put in tons of hard work and roll up most of a particular grouping. Then friends who are peripherally attached to the group step in with their group connections to continue the business; assuming that the first group isn't released en masse when members of that group come out they don't really have any massive loyalty to a particular group and usually reintegrate successfully.
Now, the dealers, their families, et al. engage in a cost benefit analysis (though they wouldn't phrase it that way). The expectation is that people will get caught every so often and cycle through terms of incarceration.1 The typical 6 or 8 months really has little or no effect on the system at all. If a sentence is 2 years or less it is annoying but can be handled. Above two years things start to get painful and five or more years is definitely a serious disruption. The type of time faced in federal court is devastating because it takes the dealer entirely out of the system.
Why then don't the federal sentences act as a major deterrent? Because they don't pierce the consciousness of the local street dealer and his family. The dealers know well what kind of time they will probably face in the courts of the Commonwealth and their activities take that into consideration. Their family and friends are constantly in and out of Virginia's courts for one matter or another. On the other hand, most of them have no clue where the federal courthouse is and no comprehension of the penalties they can face there. When these people are picked up, the first conversation wherein you explain federal sentencing to them is always painful. The feds just aren't active enough to make an impression and therefore aren't factored in. And why would they think that one time out of fifty the feds were going to be the ones involved in basic street sweeps, arresting intrastate dealers? I certainly didn't before these mid to low level dealers started getting assigned to me.
So, if government is serious about wanting to make an impact either the Commonwealth would have to impose draconian drug sentencing similar to the federal sentences or the feds would have to massively increase their activity. For a lot of reasons (mostly economic) I doubt the viability of either approach. I just don't know if Virginia could take the economic hit from massive long term incarceration for basic drug dealers (unless, maybe, we stopped sending all those people to prison for driving offenses).2 The feds are impressive when they concentrate their almost unchallengable power in one place but were they to spread their force throughout all jurisdictions in order to hit everyone hard enough to get the idea of federal incarceration in everyone's mind they would probably be too diffuse to accomplish the mission. Of course, the feds could coopt a lot of local law enforcement to do the job for them and then prosecute in federal court but that would be a pretty clear violation of the principles of federalism and we all know that our government wouldn't discard federalism just because it got in the way of the exercise of raw power.3
With all that in mind, the judge's proposals would seem to have merit. While I don't believe they would be as successful in the long term as massively increased penalties, they can be effective. This is the kind of thought that has led to the development of drug courts and programs to help people deal with their mental issues. Are these programs abused? Sure, some try to cheat their way through; nevertheless, the programs offer a far better chance at turning a minor offender back into a beneficial member of society than warehousing him in a prison does.
They are also far more cost effective and less disruptive, at least in the short run.
This is running long and I've got to get some sleep tonight. As always, I remind ya'll that this is an incomplete thought which would probably take a lot longer to flush out completely. Feel free to discuss it among yourselves . . .
1 Please note, I don't actually think the group is an organized entity calculating this way. It is more of an evolved social grouping formed into what it is by its constant interaction with law enforcement and the courts. No one "expects" or wants to go to prison. It is just that jail/prison is not a debilitating thing.
2 Were Virginia to go this route it should also prepare for a more violent future. Dealers who believe they are going to prison for a short time are likely to just go. Those who believe that they are going away for sentences which are often effectively life sentences will fight back. I cannot place my hands on the statistics right now but California's 3 strikes law is supposed to have caused a significant upswing in violence.
3 Yes, that's my tongue you see firmly planted in my cheek. However, in actuality I think there is a lot of local law enforcement going over the heads of local prosecutors, judges and juries and trying to get the feds to take cases because they know how imbalanced the federal system is.
Life in the Mob
As one mafioso snitches out the others some interesting stories surface.
More Mandatory Minimums
As I read this there are new mandatory minimums for identity theft through the use of a false passport.
Anybody out there read the actual language of the bill?
Anybody out there read the actual language of the bill?
Who Needs a License?
4 years and several thousand cases later a member of the Bronx PD's office is found not to be a lawyer.
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