Wednesday, December 21, 2011

The role of the jury in a marijuana prosecution

George Washington University law professor Paul Butler has an important op-ed in The New York Times, Dec. 21, 2011 in defense of Julian P. Heicklen, a retired Penn State professor, who has been an indefatigable marijuana legalization crusader for years. Heicklen distributed information about the jury nullification power to passersby near the court house in New York City. Federal prosecutors are prosecuting him for the felony of jury tampering and insist that the First Amendment has nothing to do with his conduct.

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Tuesday, December 20, 2011

Young, Black and Seized in New York

Nicholas K. Peart writes in The New York Times about being stopped and frisked by the New York city police five times in the five years since his 18th birthday. He's Black. Sometimes a horrid truth is so simple, so eloquent and so heart-breaking.

I was stopped and frisked by the police in Philadelphia while simply walking down the street a block from my house. It was 1969, I was 19, and I had long hair and beard.

Today, some of my best friends are former cops. I greatly admire cops who are professionals and respect the very hard, challenging work that many of them do in serving the public. But as I look inside in my heart, I see I harbor a deep seated contempt for cops as a stereotype.

Now, I am very safe from cops. My silvery gray hair is neatly barbered, my white face is clean-shaven, my clothes are in good repair, as is my car. I live in a "good neighborhood," and, at my age, I am rarely out late at night. As I say, now, I am safe from cops -- because of my race, my class status, and my age.

But to state what should be obvious: the protection of the U.S. Constitution of "the right of the people to be secure in their persons. . . against unreasonable searches and seizures" (4th Amendment) which are among "the privileges and immunities of citizens of the United States (14th Amendment) not to be abridged by any State law are NOT supposed to kick in only for the old, white, conformist-looking or middle class!

Today, we mark the passing of Vaclav Havel, and honor the courageous man who challenged the Communists in Czechoslovakia; a man sent to prison four times before he became that nation's first modern democratically elected President. Throughout most of my life, during the "Cold War," Americans were keenly aware of the evils of the Communist police states.

As a young man, I imagined that everyone behind the Iron curtain was also keenly aware of and resentful of their police state, and looked forward to replacing it. Who would continue to tolerate the invasion of liberty of an arrogant police arbitrarily seizing people? However, perhaps I was as naive about this? (Perhaps as naive as was Vice President Richard Cheney imagining the turning of the Iraqi people against the regime of Saddam Hussein upon an invasion by American troops.)

My reaction to Nicholas K. Peart's op-ed reveals how much I have inured myself to the constancy of police abuse of their power.

It is a mark of triumph that the American police have so veiled their invasions of our dignity, our privacy and our liberty that the invasions are blurred and come into our focus only rarely, such as with publication of an op-ed such as Nicholas K. Peart's.

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Saturday, December 10, 2011

Wisconsin politician uses veterans as stage props, won't provide medical care

Gary Storck has a strong op-ed published in The Capital Times in Madison, Wisconsin criticizing Wisconsin Senate Majority Leader Scott Fitzgerald for not supporting a medical marijuana bill that includes Post Traumatic Stress Disorder (PTSD) as a condition for which marijuana may be recommended. But he and the governor "adorned" their Christmas tree lighting ceremony with veterans, and the tree is dedicated to veterans.

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Arizona Sheriff Joe Arpaio accused of failing to investigate sex assaults

The office of Maricopa County Sheriff Joe Arpaio is being criticized for failing to investigate reports of sexual assault in Arizona municipalities that it policed in recent years, according to The New York Times. Arpaio prided himself on degrading and humiliating the prisoners held in his custody. He maneuvered to acquire the title, "America's Toughest Sheriff," and used the sobriquet to sell books and attract publicity. His mistreatment of prisoners has brought investigation by the U.S. Department of Justice.

I debated him on a radio program about 20 years ago regarding his indifference to the inhumane treatment of prisoners in his custody.

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Wednesday, December 07, 2011

27-years in prison, but declared innocent!

Thomas Haynesworth, 46, was the declared innocent by the Virginia Court of Appeals on Dec. 6, 2011, reports the Washington Post. He was released from prison last year after being imprisoned for 27 years having been convicted in three cases of rape and acquitted in a fourth (charges in a fifth case had been dropped), always insisting that he was innocent.

In 2005, former Virginia governor Mark Warner (D) ordered a review of cases in which DNA analysis of biological evidence might clarify the identity of offenders. Evidence in two of Haynesworth's convictions cleared him, and pointed to convicted rapist Leon Davis, who resembled Haynesworth and lived in the same neighborhood. After that, prosecutors agreed to review the other cases and concluded that the victims had wrongly identified Haynesworth.

This is a tremendous achievement by Virginia's system of justice. In many, if not most, jurisdictions, the attitude to correcting wrongful convictions is that expressed by former Virginia Attorney General Mary Sue Terry (D), "Evidence of innocence is irrelevant."

I commend Virginia Attorney General Ken Cuccinelli II (R) for joining Mid-Atlantic Innocence Project in the effort to ask the court to declare Haynesworth innocent.

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Drug advertising mocked in good parody

A new wonder drug is hyped on a well-executed mock website complete with funny diagnosis and weird side effects!

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Sunday, December 04, 2011

DEA launders or transports millions in cartel cash, says New York Times

The New York Times reports on the top of page 1, Sunday, Dec. 4, 2011, that agents of DEA and other federal agencies have laundered or transported "millions" of dollars in drug proceeds. Agents have "handled shipments of hundreds of thousands of dollars in illegal cash across borders..."

This is not news nor is it shocking. This is basic undercover work of counter-narcotics investigations. In 1986 and 1988, Congress authorized law enforcement agencies to create fake entities and otherwise engage in stings to fight narcotics trafficking and other crime.

The sums mentioned in the New York Times story, compared to the tens of billions in illegal proceeds that the cartels have to transport and launder every year, are quite insignificant. That some drug traffickers may have benefited from this investigative technique is an intrinsic price of this investigative technique.

Perhaps this is news because of the political "scandal" that BATF allowed weapons that were illegally purchased get transported to Mexico in an attempt to gather intelligence to investigate illegal weapons trafficking in "Operation Fast and Furious." Republican Members of Congress have assumed a mantle of indignation about letting "weapons walk" to attack BATF and Attorney General Eric Holder, and by extension, the Obama Administration.

Law enforcement participation in weapons trafficking or money laundering is little different from the long-time practice of counter-narcotics agents participating in drug transactions in which the drugs get through to the streets and to users as part of an investigation. If DEA seized the drugs in every transaction in which an undercover agent or informant were gathering evidence, those investigations would be infinitely more dangerous and ultimately less successful in reaching their high-level targets.

Allowing the criminals to operate, and working with criminals and assisting in their crimes, is an inherent feature of undercover investigations on the axiom that this is key to earning the trust necessary to burrow deeper into a criminal organization to gather evidence need to identify and convict the criminal leadership. This "collaboration with criminals" is also carried out investigating organizations that are fencing stolen goods, investigating illegal gambling, prostitution, pornography or trademark piracy. Such investigations are inherently "tainted" by their collaboration with criminals. They always have an element that the criminals benefit. Evaluating them always involves a process of balancing evils.

Cops routinely tell lies to suspects. Any interrogation involves misrepresentation, withholding information, bluffing, making false promises and almost every other type of deceit. Officers need to know that they must be, and must be in fact, truthful in their internal reporting and whenever they make a statement under oath or in court. Obviously distinguishing when lying is permissible and impermissible is critical. Developing the ability to resist the temptation to lie when convenient or advantageous when impermissible must be taught and reinforced regularly. Officers are, of course, human beings, and when they fail in this, they must be punished. Norm Stamper writes about these challenges in his excellent book, Breaking Rank.

Is such "collaboration with criminals" necessary? I think so. Sophisticated criminals know that they need to minimize their connection to the evidence and the criminal conduct that they direct. The most powerful, most wealthy criminals are the most insulated. The dangers that they present to to public safety and to the functioning of a democracy and free economy are extensive enough and grave enough that these tools are necessary.

What most of us would find disturbing is when such seductive and trust-winning-betraying techniques are employed against minor offenders or when there is no consensus that the conduct is wrongful and should be punished. And certain kinds of trust winning roles should not be used. Should the government deploy women to seduce criminals into love affairs to learn their secrets and to betray them? I think not. Should the government deploy agents to pretend to be attorneys, priests and clergy, physicians or journalists to gather secrets from their enforcement targets? I don't think so. Trust is an essential glue of any community. And the integrity of certain professions is critical to a functioning democracy and a functioning society.

Drug policy reformers are right to be worried about the democracy-endangering activities of undercover police operations. We are justified in being indignant that unjust or unwise laws are enforced with the most extreme techniques. But we also must concede that society must combat the most dangerous criminals, and that undercover techniques are an essential tool that society must authorize and deploy.

UPDATE, Dec. 5, 2011

Section 1352 of the Anti-Drug Abuse Act of 1986 (P.L. 99-570) created a new federal crime of "Laundering of monetary instruments" (18 U.S.C. 1956) and provided that "(e) Violations of this section may be investigated by such components of the Department of Justice as the Attorney General may direct, and by such components of the Department of the Treasury as the Secretary of the Treasury may direct, as appropriate. Such authority of the Secretary of the Treasury shall be exercised in accordance with an agreement which shall be entered into by the Secretary of the Treasury and the Attorney General." (100 Statutes at Large 3207-20).

Section 6465 of the Anti-Drug Abuse Act of 1988 (P.L. 100-690), "Undercover 'sting' operations in money laundering cases," amended 18 U.S.C. 1956 to create in subsection (a) a new crime in new paragraph (3) of conducting or attempting to conduct a financial transaction involving property represented by a law enforcement officer to be the proceeds of specified unlawful activity [which includes all manner of controlled substance offenses], if the conduct was carried out with the appropriate criminal intent.

Having helped Congress write these provisions in 1986 and 1988, I can say confidently that 25 years ago, Congress contemplated that DEA would be engaged in money laundering investigations.

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Bush Pardons demonstrate racial disparity, says Washington Post

The Washington Post has a huge front-page story analyzing pardons by President George W. Bush from 2001 to early 2009.

The story does not look at commutations of sentence, typically an early release from prison such as the pre-Christmas 2000 releases of Kemba Smith and Dorothy Gaines by President Bill Clinton. Pardons and commutations of sentence (reprieves) are both elements of the broad power granted to the President under Article II, section 2 of the U.S. Constitution.

The Criminal Justice Policy Foundation has been advocating for the President to increase the number of commutations of sentence since 2000 when it created the Coalition for Jubilee Clemency, and provides advice to prisoners and their families on its website.

Pardons almost never shorten the sentence. Typically they are granted to restore rights to vote, possess firearms, serve on juries, or obtain a business or other license. The published guidelines of the Department of Justice on the pardon process provide that petitions for pardons are not considered until at least five years have passed since a person was released from confinement, or if no prison term was imposed, at least five years from the imposition of sentence. No pardon will be considered for a person on probation, parole or supervised release.

The granting of pardons is important to individuals and can relieve ex-offenders of serious burdens. They are important politically, for example, when granted to former President Richard Nixon by President Gerald Ford, or to former White House aide Lewis "Scooter" Libby by President George W. Bush. Large scale pardons have been very important for national healing after wars, such as the pardons of Confederate officials, officers and soldiers after the Civil War, and deserters, war protestors, draft resisters, etc. after wars in the Twentieth Century.

But today, the critical issue in the proper use of this power is to commute sentences. The federal prison population was about 25,000 prisoners for most of the Twentieth Century, but began to grow in the 1980s as the war on drugs expanded under President Reagan, and it exploded after the 1986 Anti-Drug Abuse Act.

Today there are almost 200,000 convicted Federal prisoners, over 100,000 of them serving drug sentences. Most commentators -- especially most Federal judges (as surveyed by the U.S. Sentencing Commission) -- think that these sentences are too harsh, much too harsh.

The President would be serving the interests of justice by commuting the sentences of thousands, if not tens of thousands of sentences. This would save hundreds of millions of dollars in the costs of operating the Federal Bureau of Prisons. Instead the President is asking Congress to fund hundreds of millions of dollars of new prison construction.

It would be interesting to see The Washington Post analyze the use of this power to commute sentences.

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