Wednesday, July 30, 2014

Drug Demand

While we believe that we must continue to improve and strengthen our supply-side counternarcotics policies, we also believe that the United States must do significantly more to reduce our country’s demand for illegal drugs. Ultimately, it is drug consumption in the United States that fuels violence throughout Latin America and the Caribbean.

Wednesday, July 23, 2014

Prevention, Drug Treatment And Recovery

Traditionally, U.S. Presidents through the office of National Drug Control Policy (ONDCP) have divided drug demand reduction into two main categories: prevention and treatment. However, the Obama Administration has added a third area: recovery. For the first time ever, in its 2010 National Drug Control Strategy, ONDCP focused on the need to invest in recovery. Treatment for drug abusers usually takes place during a fixed period of time. However, recovery is a lifelong process.

The private sector should foster the development of businesses that positively affect the lives of people in recovery by increasing employment opportunities for them. Residential treatment is a commonly used form of treatment. However, many states are facing a shortage of residential treatment beds. The shortage of beds is especially true for women with children seeking treatment.  In spite of efforts to increase funding for drug prevention and treatment programs, the United States continues to be the world’s largest consumer of illegal drugs.

According to the National Institute on Drug Abuse’s 2009 Monitoring the Future Survey, more 10th graders are smoking marijuana than cigarettes, because they view cigarettes as more harmful than marijuana. Yet, marijuana smoke contains 50 to 70 percent more carcinogenic compounds, including tar, than cigarettes. Marijuana is much more potent today than in the past. In recent decades, marijuana growers have been genetically altering their plants to increase the percentage of delta-9-tetrahydrocannabinal (THC), the main active ingredient in marijuana. THC impacts parts of the brain, triggering a series of reactions that ultimately lead to the “high” users experience when they smoke the drug. The average potency of tested marijuana from federal seizures more than doubled from 1998 to 2008.
The second most common form of drug abuse in the United States is the misuse of prescription drugs. The Office of National Drug Control Policy views prescription drug abuse as “the Nation’s fastest growing drug problem.”
…from 1997 to 2007, the milligram per person use of prescription opioids in the U.S. increased from 74 milligrams to 369 milligrams – a 402 percent increase…in 2000, retail pharmacies dispensed 174 million prescriptions for opioids. In 2009, that number rose to 257 million prescriptions – a 48 percent increase.
Another dangerous trend by those seeking prescription drugs is the increase in pharmacy violence. For example, an April 5, 2012 press report highlighted a number of high profile robberies of pharmacies across the country. According to the report, since 2006 there has been an 82% increase in the rise in pharmacy robberies, from 385 in 2006 to 701 in 2011. This increase in robberies is attributed to addicts and thieves targeting pain medicine which can reach nearly $80 per pill in street value.
…methamphetamine prevention and treatment programs should be included in the nation’s drug demand reduction efforts not only because of the large number of users, but also because of the enormous costs associated with the drug. Methamphetamine abuse not only ravages the individual user, but also has serious consequences for entire communities. Those injured in the production or use of the drug have overwhelmed hospitals, with average stays that cost 60 percent more than the average patient, forcing taxpayers to pay “well into the tens if not hundreds of millions of dollars.” This problem has significantly increased with the so-called “shake and bake” methamphetamine production method. This occurs in small batches and often in two liter plastic bottles on a widespread basis. Methamphetamine also has a disastrous impact on the environment with five to six pounds of hazardous waste associated with each pound of methamphetamine produced. This results in staggering clean-up costs.
On a more positive note, cocaine use was at the lowest point in a decade with only .6 percent of Americans 12 or older reporting use in 2010.
According to SAMHSA 2010 survey data, 0.2 percent of Americans aged 12 and older used heroin within the past month. Methadone is the most common drug used to treat heroin addiction. SAMHSA describes methadone as a “well-studied, safe and powerful medication when prescribed and consumed properly.”
There are more than 2,000 drug courts in the United States. The first drug court opened in Miami in 1989, offering treatment as an alternative to incarceration. Drug courts are judicially supervised court dockets that handle the cases of non-violent substance abusing offenders under the adult, juvenile, family and tribal justice system.
Drug courts operate under a specialized model in which the judiciary, prosecution, defense, probation, law enforcement, mental health, social service, and treatment communities work together to help non-violent offenders find restoration in recovery and become productive citizens.
“Across studies showing re-arrest differences, the percentages of drug court program participants rearrested were lower than for comparison group members by 6 to 26 percentage points. Drug court participants who completed their program had re-arrest rates 12 to 58 percentage points below those of the comparison group.”
“It is vital that prevention is heavily emphasized, because addiction is a developmental disorder that begins in adolescence, sometimes as early as childhood.”
The reach of drug prevention programs is, of course, directly correlated with the amount of money invested in them. Thomas Babor points out that “societies tend to make a small investment in prevention and, on average, they reap a small return.” Given the current fiscal environment in the United States, the Caucus recognizes that major new, high-cost programs are not realistic right now. At the same time, we realize that greater investment in prevention is fundamental as it will save lives and money in the long term.
When carried out properly, anti-drug media campaigns have the potential to have a significant impact.
“…there has been virtually no public emphasis on prevention or efforts to reduce demand in recent years. Where, for example, are the media campaigns including new media, celebrity spokespeople, pronouncements from senior officials, the public condemnation of drug use in the same manner as smoking or helmetless motorcycle riding? Where is the effort to show the link between drug use and killings in Central America and Mexico, along the same lines as the campaign to stop the “blood diamond” trade? ‘Just say no’ is not an effective approach, perhaps, but at this point, nobody seems to be saying much of anything.”
According to the National Treatment Improvement Evaluation Study, drug treatment can cut drug abuse in half, reduce criminal activity up to 80 percent, and  reduce arrests up to 64 percent. Treatment for drug addiction rests on the science of addiction which since the 1970s has asserted that” drug addiction is a complex but treatable disease that affects brain function and behavior.” According to the National Institute on Drug Abuse, there are three fundamental components that need to be considered in U.S. drug treatment policy:
-        Treatment must be long enough to have lasting results – this means that access and costs must allow for long term care;
-        Services need to fit the needs of individuals in criminal justice populations; and
-        A balance of rewards and sanctions must exist to encourage treatment participation.
Substance abuse treatment funding in the United States was estimated by the federal government to cost $23.5 billion in 2006. This includes $5.1 billion in private insurance and personal funds, $1.1 billion in Medicare, $4.2 billion in Medicaid (State and Federal), $9.8 billion in other state and local public funding, and $3.3 billion from a variety of federal programs. These resources provide treatment for an estimated 2.6 million people annually.
Treatment costs are far lower than those of incarceration. For example, in the case of heroin addiction, methadone treatment costs $4,700 annually whereas imprisonment would cost approximately 24,000.
In Massachusetts, residential treatment providers indicate they have 25 to 30 calls a day for which they do not have a bed available. In Oregon, residential treatment wait time can be up to three months and the waiting list typically has 300 people.
…drug treatment poses several challenges for women (and particularly women with families) because “many treatment programs are designed for and used mostly by men” while many women must consider family concerns that prevent them from seeking treatment as programs for women rarely accommodate their children. Traditional drug abuse treatment programs do not allow for the inclusion of children, posing a dilemma for women between the need for treatment and the need to provide care for their children. Further complications for women seeking treatment arise from the fact that “admitting to a substance abuse problem may lead to involvement with the criminal justice system and the loss of custody of children.”
Drug treatment programs can cut down on recidivism rate and thereby improve public safety and reduce crime-related expenditures. Inmates who either committed a crime to get drugs or were under the influence of drugs at the time of their crime are among the most likely to re-offend. Of the 2.3 million inmates imprisoned in the United States, 65 percent meet the medical criteria to be considered addicted to either drugs or alcohol. The National Center of Addiction and Substance Abuse at Columbia University found that between 1996 and 2006, while the number of adults incarcerated in the U.S. increased 33 percent to 2.3 million, the number of inmates with substance abuse issues increased by 43 percent to 1.9 million. Due to the potentially large societal benefits, it is important to make available the most effective treatment programs for addicted prisoners.
Unfortunately, inmates who are substance abuse-involved continue to be re-incarcerated at greater rates than those who are not abusing drugs. One reason for this is that there is a serious “treatment gap,” where of the 1.5 million inmates who were substance abusers in 200, only 11.2 percent received treatment since admission to prison, according to the National Center on Addiction and Substance Abuse at Columbia University. This is due at least in part to fact that treatment in specialized settings, which is recognized to be more effective, is only available in 16.6 percent of facilities.
“A key to solving America’s drug problem is greater support for and partnership with the huge number of our citizens who have recovered from addiction and who deserve the opportunity to fully rejoin society. The millions of Americans who are in recovery are the most compelling evidence that there is hope for every addicted American in the ongoing process of recovery, individuals not only stop using substances, they reestablish friendships and family ties, become productive and responsible citizens, and very often help other addicted people begin to walk the same path.”
Treatment for drug abusers usually takes place during a fixed period of time, whereas recovery is a lifelong process.
Recent research suggests that while drug abstinence remains an essential prerequisite to a successful recovery program, treating a patient’s substance abuse alone will not ensure his or her recovery. For many individuals, drug addiction is a chronic problem that impacts one’s occupation, familial relations, physical and mental health, friendships, residential status and access to social services. Drug abstinence, while an essential first step in the recovery process, is unlikely to immediately reverse these longer term problems by itself Even after a patient abstains from drug use, he or she may face several practical challenges left unresolved by an acute treatment strategy, such as difficulty securing housing or employment.
Those in recovery recognize the need to address multiple aspects of their lives that have been negatively impacted by drug addiction. One study shows that although “staying clean” ranked first among the concerns of individuals in recovery, these individuals were also concerned about other long-term, “lifestyle” issues – employment, education, vocational training, housing and personal relationships.
The massive demand for illegal drugs in the United States creates both a challenge for public health in our own country and a challenge to security in countries throughout the world that are battling drug trafficking organizations. In spite of efforts to increase funding for drug prevention and treatment programs, the United States continues to be the world’s largest consumer of illegal drugs.
According to the National Survey on Drug Use and Health, in 2009, about 21.8 million Americans aged 12 and older were current (in the past month) illegal drug users, representing 8.7 percent of the population. This represents the largest proportion in the past decade of people aged 12 and older identified as current illegal drug users. This is in spite of years of U.S. investment in drug prevention and treatment programs.

Wednesday, July 16, 2014


Mexican drug trafficking organizations have become major criminal organizations and have contributed to the over 50,000 estimated murders in that country in the past five years. Our country’s drug consumption habits also create a challenge to public health in the United States. Only if we prevent drug use in the United States can we prevent drug trafficking and the violence and loss of life it brings.

Wednesday, July 9, 2014

Drug Courts

Drug courts have proven to be effective. According to a 2006 study, approximately three-quarters of drug courts – or 78 percent – were found to have significantly reduced crime.

Wednesday, July 2, 2014

Drug Use In America, 2008-2011: What It Costs Us, The Painkillers Pandemic, and Increase of Synthetic (Chemically Produced) Drugs.

     Drug consumption in the United States continues to increase. According to the National Survey on Drug Use and Health, in 2010, about 22.6 million Americans aged 12 and older were reported being illegal drug users, representing 8.9 percent of the population. This is the largest proportion in the past decade of people aged 12 and older identified as current illegal drug users.
     Drug abuse and addiction costs the United States $193 billion a year in preventable health care, law enforcement and addiction expenses. President Obama and the Office of National Drug Control Policy (ONDCP) have reconfigured U.S. drug policy to increasingly focus on curbing the U.S. demand for illegal drugs.
    ONDCP views prescription drug abuse as “the Nation’s fastest growing drug problem. Overdose deaths from prescription painkillers now outnumber deaths involving heroin and cocaine
combined, accounting for 20,044 of 36,450 overdose deaths in the U.S. in 2008. Painkillers and
prescription drugs are often purchased on the Internet, without a valid prescription 
     Dangerous, new synthetic drugs are being chemically produced to mimic the active ingredients in drugs such as methamphetamine and marijuana. These include synthetic cannabinoids, such as K2 and Spice, and synthetic stimulants, including so-called bath salts. The American Association of Poison Control Centers has noted that centers nationally received 6,348 calls about synthetic marijuana in 2011. There were 2,882 calls in 2010 which is up from a reported 14 calls in 2009. Additionally, there were 5,853 calls into poison centers concerning “bath salts” use in 2011 which is a significant increase from 303 calls in 2010.

Wednesday, June 18, 2014

Congress, The Evangelical Lutheran Church in America and Me: Part II, Quotes From The Study

What follows are direct quotes from the 50-page final social statement adopted by the ELCA.

Social Statement Document

Because mass incarceration causes significant harms, both personal and social, the ELCA strongly urges those who make and administer correctional policies to take all appropriate measures to limit the use of incarceration as a sanction for criminal offenses. Toward that end this statement identifies three specific paths: pursue alternatives to incarceration, reform sentencing laws and policies, and closely scrutinize national drug policy.

A fundamental transformation of mindset about criminal justice is required that challenges the logic equating more punitive measures with more just ones.


As this statement is adopted, one in 34 adults in the United States is under some form of correctional control and more citizens are imprisoned as percentage of the population than in any other country on earth, even those with comparable crime rates. The U.S. spends 60 billion dollars every year for corrections alone and they who work in the criminal justice system of then feel stressed to the breaking point. People of color and people living in poverty are disproportionately harmed by problems within the system. Concerned that so many cries- from victims, the incarcerated, their families, communities, those wrongly convicted, those who work in the system- have not heard, the ECLA is prompted to speak and act.

Often we have been negligent or allowed fear or bias to dictate responses to crime.

Over the past generation, the adjudicative process has been significantly affected by changes to sentencing policies. This church affirms the importance of equal treatment in sentencing, but expresses the concern that sentencing reform has become synonymous with increasingly harsher sentences.


Massive overcrowding contributes considerably to the dehumazing problems in the U.S. prison system. Inmates fear physical and sexual violence from each other and staff and worry about threats of future violence if reported. Gangs often control the culture of prisons. Inmates are powerless in interactions with correctional staff, some of whom degrade inmates through language and physical intimidation. All inmates experience despair from lack of control and inexpressible loneliness from separation.

Massive overcrowding today worsens conditions to the point of inhumane treatment of the incarcerated. Dangers to physical safety are real and declining health through poor conditions is likely. Cost-saving measures have caused some governments to contract with private firms to incarcerate offenders, raising many ethical questions.

A contributing factor to inhumane conditions involves the increased proportion of the mentally ill in jails and prison, currently well over half of the population. As the institutionalized mental illness population of the U.S. has been reduced by more than 80 percent over recent decades, many of those released have ended up homeless or in prisons. Imprisonment is not therapeutic by nature. Placement in jails and prisons has the effect of criminalizing mental illness, and puts the mentally ill at risk for exploitation by other inmates. The incarceration of those with special needs without sufficient services contributes considerably to prison volatility. The ELCA has addressed the needs of people living with mental illness and noted problems related to the incarcerated in its 2012 social message “The Body of Christ and Mental Illness.”

Reform sentencing laws and policies

Numerous sentencing policies have been adopted since the 1980s, including mandatory minimum sentences, habitual offender laws, truth-in-sentencing laws and sentencing guidelines. Their implementation has led to increases in the use of incarceration and in the length of sentences, and has limited judicial discretion in the sentencing process.

Mandatory minimum sentences that impose lengthy fixed punishments on offenders and prohibit judges from considering mitigating factors, have been used most extensively in response to drug-related offenses.

There is mounting and persuasive evidence that the war on drugs has had a disproportionate impact on people living in poverty and people of color. Law enforcement practices regarding drug offenses often have targeted disadvantaged communities, and the sentencing policies regarding drug crimes have had racially disparate effects. Despite the fact that Caucasians and African Americans engage in drug offenses (both possession and distribution) at similar rates, Black people have been far more likely than White people to be arrested for drug offenses.

First, the criminal justice system must acknowledge the racial disparities, and address the implicit and explicit racism that persists there; second, it must recognize the special needs of juvenile offenders; third, it must stop the privatization of prison facilities; and fourth, it must foster the full reintegration of ex-offenders into the community.

Racial discrimination

Acknowledge racial disparities and end discrimination

Recognize the special needs of youth offenders

Aware of the mounting evidence of the system’s deep and abiding problems, the ELCA calls for the adoption of a variety of reforms. The leading concern is to decrease the incarcerated population, but other reforms delineated in this statement are significant in their own right.

At a deeper level, however, this statement recognizes that a more fundamental transformation in thinking about criminal justice is required. It calls for a transformed mindset, one that counteracts the logic equating more punitive measures with more just ones. This mindset challenges current undertones of vengeance, violence and racism and permits everyone in the criminal justice system to be seen as members of human communities, created in the image of God and worthy of appropriate and compassionate response.

The ELCA recognizes that retreat from unduly harsh sentencing policies and the over-utilization of the incarceration may be motivated by economic factors, rather than by a moral critique of the way the system functions. Improvement for any reason is important to the individuals involved, but this church maintains that responses to criminality should be made on theological, moral and rational grounds as well. Changes made simply for economics are less likely to endure.

Today it is important to join with others of good will to challenge the flawed public consensus about crime and criminal justice. Until a shift occurs in the public consensus, criminal justice policies likely will persist that recognize neither the injustice nor the inefficiency of many of our current responses to the crime.

The ELCA therefore recommits itself to ministry with, for, to and among the many, many people whose voices cry out within our criminal justice system. “For what does the LORD require of you but to do justice, and to love kindness, and to walk humble with your God?” (Micah 6:8)


Related to mass incarcerated rates is the troubling emergence of much more punitive attitude toward the incarcerated. As the population grows, services are being greatly reduced or eliminated, such as educations and recreational opportunities or access to counseling and spiritual care.

Since 2004, more than 20 states have enacted or proposed legislation to reform sentencing policies. These legislative changes have focused on several types of reform. Primary attention has been given to increasing sentencing options that divert drug offenders from incarceration to community-based treatment alternatives and expanding sentencing alternatives to incarceration for other non-violent offenders.

Author’s note: Compressing 50 pages into two and a half is not the best way to pay justice to the task force and all the work they did conducting the study over the five years, but it is a start in echoing the words of wisdom found in the report. They are well written and coincide with many of the philosophies of my own work.


Wednesday, June 11, 2014

Congress, The Evangelical Lutheran Church in America and Me: Part I

Through the power of free speech, it is discovered that some minds are actually aligned with the author on these issues.

Sentencing Reform Pushed In Congress

Key Quotes from the Reading Eagle, 1-5-14:

"About half of the nation's more than 218,000 federal inmates are serving time for drug crimes and virtually all of them faced some form of mandatory minimum sentencing."

"...the Smarter Sentencing Act. It would expand a so-called safety valve already on the books that gives judges discretion for a limited number of nonviolent drug offenders. The new law would give judges the same latitude for a larger group of drug offenders facing mandatory sentences."

On Jan. 5, 2014, the Sunday edition of The Reading Eagle published a story titled "Sentencing Reform Pushed In Congress." President Obama, along with his cabinet and Congress, raised the issue of a change in mandatory sentencing, particularly for nonviolent drug offenders. For my readers, does this ring a bell? As a result, Congressional sub-groups are pursuing are pursuing the elimination or the drastic change in mandatory minimum punishments amid growing concerns that the sentences are both unfair and expensive on the dollars again, does this ring a bell?

The Evangelical Lutheran Church in America
I was not aware that about the time I began writing my book, Justice or Just This: A Constitutional Trespass, a blue ribbon committee of criminal justice experts from different parts of the country had begun in 2005 a five-year study that culminated in a 50-page social statement. It immediately faced two years of study and discussion and was completely adopted at the national E.L.C.A. Church Assembly in Pittsburgh in August 2013.
I learned of this work when the study was published three years ago. I am proud to say that I then participated, along with Bishop Samuel Zeiser, in the 15 county regional education seminars organized by the Northeast Synod of the ELCA (visit to learn more about this process).
I can summarize the work of those who developed the social statement by simple stating that I agree with its contents entirely. The report underlines the unanticipated and, thus unpredictable by-products, of our country's, 'tough on crime' philosophy, which has produced thousands of examples of incorrect, unjust unfair and illogical tragedies that criminal justice professionals have witnessed with horror, but were powerless to do anything about it.
"There's a Monster on the Loose." Sadly, that's what exists because so many people recognize the wrongs that have been created, but legislators do not pass laws to return sentencing discretion to the judiciary by nullifying mandatory minimum sentencing and disbanding the Pennsylvania Commission on Sentencing. Judges are practically in office for life (at least one 10-year term) and thus are about the only people who can impose the sentences that need to be ordered rather than what is popular for re-election by throwing everyone in jail regardless of circumstances. I have mentioned several times that Pennsylvania legislators, both on and off the record, have admitted their mistake, but that they are afraid to eliminate mandatory minimum sentencing because the average voter will listen to the soft on crime rhetoric released by their opponents. Obviously the legislators fear that they will be voted out of office for not being tough. Tough on crime, what ever that means, is the image they seek. Soft on crime, which again is an arbitrary phrase, is a campaign flaw in the eyes of the average voter. We must insist that our elected officials slay the monster or it will continue to grow.
Please keep in mind that the term 'prison overcrowding' is a recent phenomenon that began immediately after Pennsylvania Commission of Sentencing became law in 1982. Within two years, Pennsylvania began building more new prisons (16 in the next 14 years) than the eleven built during the entire 160 years 1982!
I implore the reader to demand the elimination of the Pennsylvania Sentencing Commission, which in reality really determines what sentences are imposed in our state. Elimination is the only improvement that can be made because nearly everyone follows the Commission's guidelines as if they are gospel. Consequently, even judges, year after year, follow the guidelines, and thus sentences are consistent with the commission's guidelines 90% of the time. Mandatory minimum sentencing must also be eliminated. When these reforms are applied, judges will be forced to intelligently decide every sentence in Pennsylvania. The judge will be responsible, not the prosecutor or the sentencing commission. And that is the way it has to be.
I must stress that both mandatory minimum sentencing and commissions on sentencing are recent events. Both grew in acceptance and thus opened throughout the U.S, in the last 40 years. For our entire history, Pennsylvania judges did the sentencing until someone got the bright idea to control judicial discretion and make sentencing a numbers game. The sentence is now determined by what point values are placed by the commission on prior offenses. That point value is then plotted against the new offense. The point values and the plotting of them allow anyone to compute the standard, aggravated and mitigated sentencing ranges for the prosecutor to offer as a plea deal.
The concept spread to all states and to federal government only because it was a no-brainer for legislators to vote to pass the laws. To do so shows they are tough on crime. It was free publicity stating that the legislator is doing his/her job by controlling sentencing and ensuring that judges impose sentences consistent with each other based on the plotting of the two factors. Simply put, everybody is treated the same. Justice requires that sentencing be consistent and the legislator is assuring that result. It is a simple winning concept.
The only problem is this is a myth. Offenses are charged and negotiate differently throughout the state depending on many variables: 1) the age, experience and philosophy of the police officer; 2) the volume of cases in the municipality; 3) the justice philosophy of the prosecutor; 4) the volume of criminal cases in the system and how many full is the jury trial list; 5) the age, health and related factors of the victim determining the likelihood that the victim will be available to testify at a trial; 6) how much of a priority a guilty plea is to save further exposure of the victim to reliving the case by testifying in a jury trial; 7) whether the defendant has private council or a public defender; 8) the experience, ambition and capabilities of the defense lawyers; 9) whether witnesses are cooperating and willing to testify. 10) whether the socioeconomic and political strata of the electoral voting public that elects the prosecutor and the mayor of the police department is blue collar or white collar.
The President, Congress, and the E.L.C.A. have all (finally) raised the need for reform. More citizens are learning that sentencing commissions and mandatory minimum sentencing practices were not the answer, and that their existence actually made matters worse. When will it change?
Next week in Part II: Quotes from sections of the 50-page report of the Task Force of the Evangelical Lutheran Church in America.

Wednesday, June 4, 2014

Nature’s Call?

       From my archives of more than 20 years is a news story that delivers the message that truth is stranger than fiction. Truth can be strange because people do strange things. But, we are only human, and that applies to every class, race, sect, religion and profession. We all make mistakes. Is there a second message here?

     People with great authority do sometimes abuse it and this has been seen many times in many places, including police departments, both large and small. That’s the other side of the coin. The tragedy is that some of these abuses have resulted in years of punishment for people who could not be proven guilty beyond a reasonable doubt without such police misfeasance. The sadness continues when the abuse by the officer is sometimes justified by saying: ‘He’s just a thug and is probably guilty of something or will be in the future. What’s the harm?’ That is a discussion for another time. Most importantly, these are exceptions to the norm; in fact, the vast majority of police officers do their job in a fair, professional and ethical manner. 

    But with regards to this case, is the strange behavior/ actual or attempted abuse, a combination or neither? You be the judge. 


Nature’s call or not, trooper guilty

Judge ignores testimony on a hurry-up call – claimed and denied – as an excuse for speeding, and levies fines on the state officer for speeding and fleeing.
By Dave Mowery

Eagle/Times (published in the mid 90s)

Nature’s call had no bearing in a case against an off-duty Pittsburgh-based state trooper found guilty of failing to pull over properly after being clocked for speeding.

Trooper Nelson Bryant, 38, a 13-year police veteran, was in Berks County Court Wednesday hoping to wipe out a summary charge that he fled police or purposely failed to pull off the road.

After a 2 ½ hour hearing, Judge Jeffrey K. Sprecher denied the request and fined Bryant $67 for speeding and $200 for fleeing police.

Trooper Michael J. Mescavage, who is now retired but who was assigned to the Hamburg barracks at the time of the incident, testified that he clocked Bryant at 76 mph in a 55 mph zone March 14 on westbound Interstate 78 in Tilden Township.

Mescavage, a trooper for 23 ½ years, said he pursued Bryant for about two miles with the cruiser lights flashing before Bryant pulled over. The retired trooper said Bryant told him he had diarrhea and was not trying to outrun the pursuit car.

Bryant disputed that, claiming he pulled over as soon as Mescavage turned on the overhead light of the cruiser. Bryant also said he never offered a reason for speeding.

He did not contest the speeding citation, but he denied he was driving 120 mph during the chase, as Mescavage claimed. 

After Bryant pulled over, he displayed a state police identification card in his wallet when asked for his license and registration, Mescavage said.

“I told him I didn’t want to see an identification card,” Mescavage said.

He said Bryant explained he had diarrhea and got out of the car and walked into the weeds along the road to relieve himself.

Mescavage said he contacted a supervisor, who indicated he could issue the citations later. He said he returned the next day to search the weeds where he believed he stopped Bryant, but found nothing.

Bryant said his identification card was near his driver’s license in his wallet, and he did not offer it to Mescavage. And, he said, he went into the weeds to urinate…

Wednesday, May 28, 2014

Tough On Crime But Hard On Justice

     This blog includes the attached opinion column, which reminds me of why I wrote my book, Justice or Just This?: A Constitutional Trespass. The Reading Eagle has carried the weekly column of Leonard Pitts Jr. for several years. Exactly two years ago last Sunday, Mr. Pitts wrote an editorial piece that coincidentally underlines the theme of my book. It is my belief that after serving as judge for 22 years, that the other two branches of government have trespassed on our Constitution and have controlled judicial sentencing to the point of substituting their judgment for that of the sentencing judge. This conclusion is reached based on two authoritative factors both created by laws passed by the other two branches (executive and legislative) solely to control judicial sentences:

          1) Mandatory-minimum sentences are imposed by either the legislature or the prosecutor, not the judge. The three branches of government balance and check one another: legislative, executive, including the prosecuting district attorney, and the judiciary. How is it constitutional for another branch to mandate that the judiciary impose a minimum sentence in a case if there is a guilty plea or verdict? 

          2) The Pennsylvania Commission on Sentencing recommends sentences that unfortunately we judges consistently follow 90 percent of the time in all sentences imposed in Pennsylvania. A sentencing commission concept is at best a good idea going terribly wrong. They have existed in every state and in the federal government. 

     I continually inquire as to who does the sentencing in the Commonwealth. Pennsylvania is not alone, as Pitts points out. He cites other examples of injustice from different parts of the country. Please keep in mind that the term ‘prison overcrowding’ is a recent phenomenon that began immediately after the Pennsylvania Commission of Sentencing became law in 1982. Within two years, Pennsylvania began building more new prisons (16 in the next 14 years) than the eleven built during the entire 160 years before 1982!

Nation Got Tough on Crime and Hard on Justice
By Leonard Pitts Jr. (published 5-25-12)

 The people got sick of it, all those criminals being coddled by all those bleeding heart liberal judges with all their soft-headed concern for rights and rehabilitation. And a wave swept this country in the Reagan years, a wave ridden by pundits and politicians seeking power, a wave that said, no mercy, no more. From now on, judges would be severely limited in the sentences they could hand down for certain crimes, required to impose certain punishments whether or not they thought those punishments fit the circumstances at hand. From now on, there was a new mantra in American justice. From now on, we would be tough on crime. 

We got tough on Jerry Dewayne Williams, a small-time criminal who stole a slice of pizza from a group of children. He got 25 years. We got tough on Duane Silva, a guy with an IQ of 71 who stole a VCR and a coin collection. He got 30 to life.

We got tough on Dixie Shanahan, who shot and killed the husband who had beaten her for three days straight, punching her in the face, pounding her in the stomach, dragging her by the hair, because she refused to have an abortion. She got 50 years. We got tough on Jeff Berryhill, who got drunk one night, kicked in an apartment door and punched a guy who was inside with Berryhill’s girlfriend. He got 25 years. 

Now, we have gotten tough on Melissa Alexander. She is a Jacksonville, Fla., woman who said her husband flew into a violent rage and tried to strangle her when he found text messages to her first husband. She fled to her car, but in her haste, forgot her keys. She took a pistol from the garage and returned to the house for them. When her husband came after her again, she fired into the ceiling. The warning shot made him back off. No one was hurt.

Like Shanahan before her, Alexander was offered a plea bargain. Like Shanahan, she declined, reasoning that no one would convict her under the circumstances. Like Shanahan, she was wrong. 

Alexander got 20 years for aggravated assault. And like Shanahan, like Berryhill, Williams, Silva and Lord only knows how many others, she received that outlandish sentence not because the judge had a heart like Simon Legree’s, but because the judge was constrained by mandatory-minimum sentencing guidelines that tied his hands, allowing no leeway for consideration, compassion, context or common sense. 

Judge Charles Smith, who sent Shanahan away, put it best. The sentence he was required to impose may be legal, but it is wrong. 

The Eighth Amendment prohibits cruel and unusual punishment. In a nation where we execute people based on nothing but eyewitness testimony, it is hard to imagine what meaning that prohibition holds. But assuming it means anything, surely it means you can’t draw a 20-year sentence for shooting a ceiling. 

In restricting judges from judging, we have instituted a one-size-fits-all version of justice that bears little resemblance to the real thing. It proceeds from the same misguided thinking that produced the absurd zero-tolerance school drug policies that routinely get children suspended for bringing aspirin to class. There is this silly idea that by requiring robotic adherence to inflexible rules we will produce desirable results.

It should be obvious how wrong and costly that reasoning was and how urgently we need to roll back the wave that swept over us. It is understandable that the nation wanted to get tough on crime. But we have been rather hard on justice, too.

Tuesday, May 20, 2014

Election to Bench-How It Works In Pennsylvania

     Twenty-five years ago, I got to the bench with the support and hard work of many people. A campaign for the public office is an expensive experience, especially when it covers all of Berks County. I recently found this letter from "Big Bob," the campaign's committee chairman, to other members. It was written in the summer of 1991 to announce a picnic to celebrate our victory. Bob writes well and I wanted to share his wit and wisdom with readers. Reading this again brought many memories and a smile to my face. Enjoy.


Review of
"Sprecher for Judge" Campaign
A one-act dramedy from the Chairman

They say it's not over til the fat lady sings. Sometimes, it seems. it only takes one act to get her on stage.
As the curtain rose we found Jeff Sprecher at center stage, playing the lead as a qualified candidate determined to win his party's nomination for Judge of the Court of Common Pleas of Berks County.

Ever as his side was his wife Jane, whose supporting role called for her to inspire and encourage (nag) her husband into traversing the entire stage many times, even if it meant wearing three hats, appearing two places at once and being one tired dude.
From the first plate of spaghetti to the last "grip and grin," this production called from invocation, flexibility and hard work.

More often than not, the challenge was not in memorizing their lines (the lead wrote them himself based on a true story), the challenge was in saying the same thing a hundred times and making it sound fresh each time. After all, how many ways are there to say "I earned my bachelor's, master's and law degrees while working full time and supporting my family?"
But repeat his lines he did. From granges to bingo's to meetings with politicos, no one was spared. If you'd listen (and even if you wouldn't), he'd talk. And if you were lucky, you might even find a pencil coming your way.

Behind the scenes worked a crew of volunteers dedicated to bringing down the house. Through not a cast of thousands, their work was reminiscent of one. The chorus sang the praises of Sprecher for Judge to everyone they met. Scenery was impeccable (those confounded signs were everywhere), with impressive billboards featuring that famous Polident (or is that Poligrip?) smile. Whether by post, personal contact or door-to-door, handbills made their way into homes of city, town and country voters everywhere.
All in all, a finely orchestrated production

As the lights dimmed on the first act, the cast and crew began setting the stage for the act to follow as it turned out, though, a full scale production would not be necessary, since the applause and standing ovation by the audience indicated that they'd seen enough: the play was a hit, Sprecher was a winner and everyone went home satisfied...
Thank you and congratulations to all!

Author's Note

     The primary election is held to determine the victor of the party. To reduce the political impact in a judicial election, a candidate for Judge is permitted to circulate nominating petitions to be put on both the Republican and Democratic tickets. This is called cross-filing and only judges and school board candidate can do this. It gives both parties the opportunity to choose which candidate will lead its ballot regardless of the candidate's political registration.
     I am proud to say that I was one of two candidates on both the Republican and Democratic ticket to finish in one of the top two positions on both ballots. The election of two judges was finished in the primary and the general election ballot became only a technicality.
     As we celebrate the primary election of May 20, 2014, please keep in mind how it works for judges. Judges are only on the ballot for election in odd number years. Thus there were no judicial elections in the 2014 primary. Hopefully you exercised your greatest freedom-that of choice- in this primary election


Wednesday, May 14, 2014

The Good, the Bad, and the Ugly...

              The war on drugs was waged and fought with good intentions. But after 43 years of battling, we are compelled to evaluate its results and determine if it should continue. President Nixon declared a war on drugs in 1971 that is still waged on an increased level today, however that does not mean that this is best for society. The good is also found in the intent to arrest those at the top of the food chain in the illegal drug market to stop distribution.

Evaluators of this war must also study the epidemic of prison construction that has plagued our nation during those four decades. They will also have to consider the thousands of lives ruined by the incarceration of the mother and/or father, and how much the inmate, their family and society continue to suffer just like civilians in any other city where war was waged. That is the bad part, and therefore there are many negative results. The big fish was never reeled in. The flow, distribution and use of illegal drugs did not diminish. Even after every resource was utilized, the war on drugs stands as a big failure.

In summary, what constitutes the good? Our good intentions do but that’s about it. The bad is the irreparable harm to millions of citizens caught in the war zone. They were locked up for long periods of time, mothers and fathers were taken from their families and taken to prisons located hundreds of miles away, placing more stress on the family unit. The nation’s cities are in shambles from the war on drugs, but the suburbs and countryside remain relatively intact. African Americans and Hispanic or Latinos are sent to jail more than whites, even though use and availability of illegal drugs is similar for all three races. So, how about the ugly?

The ugly consists of the violence city residents regularly witness and fear: Drive-by shootings, murders, gang-related retaliation, the deaths of innocent bystanders, including children and the stress of living in a community with the knowledge that almost everyone owns and carries a gun. It’s a place where increased arrests, along with prosecutions and punishments, are suffered by the residents within city limits. Stop-and-frisk law enforcement tactics and aggravated punishments for distributing drugs in the city are at the forefront of this argument. The fact that nearly every illegal drug transaction in a city is within 1,000 feet of a school zone results in the majority of offenders being caught in the web of more lengthy mandatory minimum sentencing. That does not exist in the suburbs or rural America. Neither do stop and frisk law enforcement tactics.

The ugly can also be represented in the ineffective law enforcement programs. Everyone wants the drug problems to stop, but the kingpins and top drug distributors are not arrested for fear of injury or death if someone testifies against them in court. The situation has come to the point where a potential informant will choose long jail sentences that are often followed by deportation over a lighter sentence earned by ratting on his/her supplier. I have witnessed this many times. However by snitching,  on the smaller the informant may provide enough that the mandatory minimum sentence will be withdrawn by the district attorney. That is an option for a desperate defendant, which regularly happens because there is a reward given to the snitch defendant. In fact, there is a standard jury instruction to be given to the jury when a jailhouse informant points the finger against the defendant. There are so many snitches that websites using the slogan “snitches get stitches” have been created to scare the informant who turns states evidence. Their pictures and names are posted.

Mexico is the worst example of this. More than 50,000 people have been executed for snitching and being part of a rival gang. They are often tortured first. Stories of beheadings and public displays of dead bodies serve as messages to others who may cooperate with authorities. This can’t happen in the United States of America.

Or can it? In March 2014, Sen. Bob Casey Jr. asked U.S. Attorney General Eric Holder to allocate more resources to help Philadelphia’s district attorney combat witness intimidation in Philadelphia. As of March 14, 188 witness intimidation charges were filed in Philadelphia. That is 60 more than last year. According to the Associated Press, Philadelphia’s district attorney reported that since 2010, when records for intimidation began to be counted, that “more than 3,700 cases have been filed in Philadelphia, ranging from execution-style slayings to court room threats.” (Reading Eagle, March 2014)

We can conclude from our evaluation of the war on drugs that it has been as effective as prohibition;

In other words, the war has failed and only organized crime has prevailed. There is a saying that ‘the road to hell is paved with good intentions.’ That saying is applicable to the intention of identifying and prosecuting the top drug offenders and scaring the others away with tough punishment laws. But little public benefit has been accomplished, while a large pile of bad and ugly desecrates our cities, the justice system and prisons; Many logical facts leads one to conclude it just lies these stinking to high heavens.  You be the judge.

Wednesday, April 30, 2014

What Has Massive Enforcement Of Simple Possession Of Marijuana Laws Accomplished?: Part II

    Earlier this year, I wrote that the war on drugs has had an unequivocally detrimental effect on our cities. I mentioned stop-and-frisk police tactics and how they are applied to people of color in the cities in a discriminatory manner. To my knowledge, no such policing tactic exist is in the suburbs-anywhere.

     In Part I last week, I included The New York Times editorial published in June 2012, which highlighted this imbalance of enforcement of drug laws in the cities but nowhere else. Logically, one might hypothesize this tactic is used to arrest hardened, violent criminals. But that could not be farther from the truth. In New York State, possession of a small amount of marijuana was reduced in seriousness to simply a violation that is similar to a speeding or traffic ticket. In fact, for the last 35 years, it has been downgraded to only a violation of the law. Yet in New York City in 1990 - 13 years after the penalty reduction went into law. This law enforcement crackdown is not found anywhere else in the suburbs of New York State. This is why it is a direct attack on the inner-city population, as is the stop-and-frisk program.

    In addition to my message that we have discriminatorily declared war on our cities, this article also communicates that it is acceptable for police to stop and frisk 700,000 citizens and arrest 50,000 for possession of a small amount of marijuana. But despite this extensive and intensive drug enforcement tactic, America has been made unable to declare victory on its declared war on drugs. We've lost the war because it was always unwinnable. This is after increasing arrests for dangerous drug in the drug "crisis' - from 1,000 in 1990 to 50,000 in 2011.

     The question is If that's the result of our war on drugs scorecard with regards to an "introductory" drug like marijuana, then how successful has the war on drugs been with substances like heroin, methamphetamine or prescription pain medications or alcohol or...?

     This increase from 1,000 to 50,000 arrests for marijuana possession during a 21-year span raises many more questions, not the least of which are: what has been accomplished, what was the original intent of the war on drugs, an finally, what was the point of it all? And didn't anyone in law enforcement or public office in New York City analyze this illogical statistic?? Have they done so now? Will continue happen every year?
Our War On Drugs Have Failed

      Among the many understood facts that led only to this conclusion is the astronomical rise in costs in the United States to incarcerate 12 times the number of inmates in 40 years from when president Nixon declared a war on drugs in 1971. The Reading Eagle's front-page report on March 9, 2014 titled 'The Heartache of Heroin' quotes the special agent in charges of the state's Bureau of Narcotics Investigation and Drug Control that "heroin use has reached the entire state [of Pennsylvania]", It used to be found only in "pockets" throughout the state. The gist of the article revealed that in three years the number of deaths from heroin use increased in Pennsylvania by 149% from 332 in 2000 to 827 in 2012. On page 54 of my book Justice or Just This?: A Constitutional Trespass, published in late 2011, I posed the question: Is this the best policy to declare war on drugs when alcohol and tobacco use are far more damaging to society? In fact, legal prescription drugs send more people to the emergency room than the illegal drugs we are spending billions to fight!

     How was America benefited from its current 43 year old war on drugs? Equally important is the question of how has our country suffered because of it? Drug use is the same regardless of race, yet three times more blacks are in jail for it than whites. It fact, we can summarize in general, that disproportionately more blacks and Hispanics are in prison, while fewer whites are behind bars for other crimes as well.

     Why is that? Is it because the authorities that make and enforce the criminal drug laws prioritize arrests in cities but not in the suburbs? We do know that when blacks fled the south for the north in the 1960s, many relocated in the ghettos of the cities. Does this statistic have anything to do with why we are fighting the drug was in our cities?
     Are we discriminatorily enforcing the drug laws more so in our cities than in the country or the suburbs, which is largely made up of white people? The numbers indicate that the answer is "yes." Stop and frisk law enforcement demonstrates this in every city in America.

    In March this year, we learned about Newark, N.J. which has an African American population of 52%. The op-ed piece in the N.J. Star Ledger states that " Newark cops appear to be targeting mostly black men in searched that often lead nowhere." And Newark police are worse than New York City police when it comes to stop and frisk. In 2011, New York's rare was 89 police stop 1,000, while Newark arrested 91 per 1,000 citizens. Seventy-five percent of those stopped and frisked in Newark were black.

    I ask again, has anyone in the government or law enforcement in Newark or New York City, or in the national spectrum for that matter, seen and honestly analyzed these numbers?

Wednesday, April 23, 2014

What Has Massive Enforcement Of Simple Possession Of Marijuana Laws Accomplished?: Part I

     From recent archives of op-ed pieces published in the New York Times is the editorial from June 5, 2012, titled 'No Crime, real punishment.' I invite you to read it and evaluate what good had been accomplished with this particular front of this country's 40-year war on drugs. Action has a reaction and that the reaction may not always be favorable. Expert testimony is not necessary to help form thoughts and opinions on this matter. Everyday Americans have been witness to the four decade war on drugs and its carious components and can testify to its impact. Increased drug law enforcement has cause record incarceration, which removes more citizens from their homes and drains state and federal prison budgets. Please apply your common sense and everyday knowledge in evaluating the drug wars history in New York City and then contemplate how common this law enforcement tactic has been particularly in other cities in America. 

    Most are aware that the concept of simple possession of a small amount of marijuana as a crime has moved on the punishment scale from a serious crime toward decriminalization or at least to a "softer" penalty throughout the United States in the last 40 years. Some states define its jurisdictional level as less than 30 grams of the substance. As reported in 'No crime, real punishment,' the state of New York set its limit at 25 grams or less, and of course, there are states where marijuana possession is now legal. Keep those facts in context and then answer the question: does the arrest of 50,000 people for small amounts of marijuana in New York City in 2011 make any sense? Are discriminatory enforcing the drug laws more in our cities than in our cities than in the suburbs? Are black and Latino youths the resultant target, but not young white people? In 2011, NYC's stop-and frisk program netted 700,000 cases. Eighty-five percent of those arrested were either black or Latino.
No Crime, Real Punishment, N.Y. Times. 6-5-12

Gov. Cuomo's proposal to curb low-level marijuana arrests is a start (published 6-5-12), New York Times' Op-ed section

New York State decriminalized the possession of small amounts of marijuana in the late 1970s. But last year [2011], in New York City, 50,000 people- the majority of them, young African-American or Hispanic men - were still arrested for possession because of overzealous policing and a weakness in the law.

Gov. Andrew Cuomo has proposed to decriminalize the possession of small amounts of marijuana in public view - a sensible step that should decrease the number of those arrests and lessen the damage to those young lives. Now Mayor Micheal Bloomberg, who has endorsed the governor's proposal, must rein the city's runaway stop-and-frisk program that is also disproportionately stopping young black and Hispanic New Yorkers.

In 1977, hoping to relieve court congestion and allow prosecutors to focus on more serious crime, the State Legislature made possession of 25 grams or less of marijuana a violation - something akin to a traffic ticket- punishable by a $100 fine for the first offense. Possession in public view was a misdemeanor punishable by up to three months in a jail an a $500 fine.

Marijuana arrests initially declined, but they exploded from less than 1,000 in 1990 to 50,000 last year. Of the nearly 12,000 16 to 19 year olds arrested in 2011, nearly half had never been arrested before; 94 had no prior convictions.

Public defenders have repeatedly charged that the police are entrapping young people, stopping them for no cause and then requiring them to empty their pockets to bring their marijuana into public view. And former police officers now speak openly of being pressured to drive their arrest rates.

Last fall, Commissioner Raymond Kelly of the New York Police Department tacitly admitted there was a problem, instructing officers to arrest people only if they revealed the marijuana on their own. According to city data, the number of arrests declined nearly 25 percent over the next eight months. While that is encouraging, without a change in the law, the department could fall back into its old ways.

The Legislature should take up Mr. Cuomo's proposal and pass it swiftly. People with minor convictions can be denied public housing and federal student aid and written off by prospective employers. The numbers for the stop-and-frisk program are even more disturbing- 700,000 last year, about 85 percent of those involving Blacks and Hispanics, who make up about half the city's population.

Decriminalizing public possession of small amounts of marijuana will address only part of that problem. For that sake of fairness and public safety, the stop-and-frisk program, which breeds fear and distrust of the police in minority neighborhoods must be reformed.

    Next week in Part II, the war on simple possession and where it selectively enforced throughout the country will be discussed. Stop-and-frisk tactics appear to be non-existent in the suburbs? Isn't this discrimination?

Wednesday, April 16, 2014

A Mandatory Minimum Sentence from Louisiana – not what the judge wanted to do, but was forced to impose

Is This Justice?

             Each week, Pennsylvania lawyers and judges receive the judicial decisions from the appellate courts. Before I continue, allow me to provide some background information. Judges at the trial level are not called the appellate court. The trial court in Pennsylvania is the court of common pleas. It is the only court where a record is maintained because we judges, in non-jury trials, or jurors in jury trials, are the finders of facts in each case. In other words, either a jury or a judge tries the case and renders a verdict. All disputes are litigated in the trial courts. This means that all evidence and arguments are presented in each and every trial. What do I mean by stating that we are the only court of record in Pennsylvania? The trial court records testimony, motions, exhibits and rulings on evidence all of which is reviewed by the appellate courts when an appeal is filed.

            Because appellate judges decide the appeals, we must continually learn what the recent law is by promptly reviewing these rulings. The appellate courts interpret the law and tell judges when the law changes.
            In addition to the decisions of the Pennsylvania Appellate Courts, judges also receive a listing of some appellate court cases decided outside the state. It is from this list that I will summarize a case that was decided in Louisiana last year that demonstrates yet again how rigid and unfair mandatory minimum sentences are. The defendant had prior convictions for drug sales and a robbery. Under the Louisiana state habitual offender law, the judge was mandated to sentence him to a term of life without parole. His crime that earned him this punishment: “selling 0.69 grams of marijuana to an undercover police officer, who solicited the sale while the defendant was in his own home minding his own business,” wrote a dissenting judge. The same judge described the case as one involving an “honorably discharged American veteran of Desert Storm, suffering from drug addiction, and unable to get medical help from the U.S. Veteran’s Administration.” State of Louisiana  v. Harris 13-133 (LACt. App, 3rd Circ., Dec. 11, 2013)
            Desert Storm occurred in 1991. This man is probably in his early 40s, so life for him may be 30 to 40 more years. Is this fair? Who should be sentencing this man, the legislature or a judge?
            Thirty to forty years converts to a loss of well over $1 million to house, feed, and treat this inmate. His medical expenses will increase astronomically as he reaches old age, which in penitentiary prison time is 50 years old and over. Shouldn’t the judge have discretion to impose what is merited under the circumstances rather than just being mandated to impose what he may very well believe is not just?