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?

Wednesday, April 9, 2014

Kids For Cash: Part II

How did the lawyers, court staff, the press, the kids and their parents not bring this continuous crime to light? How could this corrupt policy exist and continue for the 2 judges to be paid $2.6 million? Was it because of our blind acceptance of a tough on crime philosophy in America?

Please bear with me as I summarize.

            The legislative and executive branches have a sentencing “policy” in the form of a law which commands the sentencing judge to impose a minimum jail sentence in certain crimes; and the prosecuting attorney may also choose to exercise the option to command the sentencing judge to impose a minimum mandatory sentence by simply filing a notice of intent to impose this mandated penalty. But the judiciary is prohibited from having any sentencing policy of either always imposing or never imposing a certain sentence. This is because the judiciary shall never predetermine, before the sentencing hearing, what the sentence will be (even though the other 2 branches have the power to, in fact do, tell the judge what, at least, the minimum sentence is.)

          One might ask how a court policy is any different than mandatory minimum sentences or the sentencing commission pre-determining the standard sentence. There is a difference between minimum mandatory sentencing and guidelines of a sentencing commission. With the sentencing commission, the commission itself produces a recommendation or a guideline; it is not mandated, even though its followed in 90% of all sentences imposed each year in Pennsylvania. This is why the commission must be disbanded.

         With minimum mandatory sentencing the prosecutor was given extraordinary power in the balance of the 3 branches. This, however, was not unintended. In the past 40 years the prosecution in general has received much expanded power in several areas, which is another topic for another day. Has the tough on crime atmosphere that allowed the imposition of minimum mandatory sentencing and the sentencing commission and its “guidelines” somehow contributed to the two corrupt judges and their policy of putting almost all juveniles in detention? How did all these many important and responsible people permit this policy to go on and on? Did everybody let them continue day in and day out because they all thought it was okay to severely punish all kids?

            Perhaps what happened in Luzerne was tough on crime being carried to a new level - put every kid in detention to crack down on crime. Perhaps that’s how the 2 juvenile court judges got away with it at least for a couple of years.  Perhaps what happened in Luzerne County was simply unchecked power at work. Rather than the executive, judicial, and legislative branches checking each other, there is a breakdown in the balance of powers by only one branch, as with a king or dictator, being a kingdom unto itself with unbridled discretion, wielding unchecked power.

            It could be that fear of retaliation for anyone who was to question what the juvenile court judge was doing. This fear could manifest against the whistleblower in the form of political retaliation: being voted out of the office, or fired, or one’s job made too difficult to continue. Fear could also raise its ugly head if the retaliation is in the form of abuse of the legal process to sue or arrest the person in retaliation for asking questions. Or was the retaliation feared violence to the questioner and his family?

            One thing is for sure, it is essential that systems that are big, complex and important as the criminal justice and legal system, or the war on drugs, and/or sentencing itself must be reviewed and studied constantly. We should never pass a powerfully impacting law that shakes the constitutional foundation of any of these systems or concepts without a close follow-up review to measure the effort. Such a review must be meaningful, one that will be strongly considered for possible modification or even cancelation of the law that passed mandatory minimum sentencing or created the commission of sentencing if it did more harm than good or if it was totally ineffective. Otherwise, it is just good politics, lip service used to pass the new law and create the change. It merely sounds and looks good, but it actually makes matters worse.

           For instance, the Pennsylvania legislature itself had the concept of implementing a sentencing commission in the state studied prior to the law passing in 1982. The study findings determined that sentences in Pennsylvania will double as a result of the creation of the commission. It was passed anyway – regardless of the negative predictions. Sadly it is not only on the books as law but it’s been very alive and well for 32 years with an annual budget of more than $1.9 million. We must consider voiding existing laws more than passing new ones. We’re a society that passes tough laws at the drop of a hat. Whenever a heinous crime occurs the legislature passes a law making that crime, which already is on the books as a crime with a maximum punishment already, a new crime. And everybody feels better because something, anything, was done that makes no difference except too often to do more harm than good.   

            In conclusion, when something tragic such as the details of the Kids For Cash film or a disappointing outcome such as the Treyvon Martin case is realized, citizens must do their best to learn from these debilitating errors by studying all aspects of the events and urge lawmakers to pass laws that never allow something like this to happen again. With mandatory minimum sentencing, there is not much of a difference between the district attorney always imposing a mandatory minimum sentence in school zone drug cases and the judge or court having a policy that everybody gets this or doesn’t get that sentence. The constitutionality of mandatory minimum sentencing will one day be raised in a case that will merit finding the concept unconstitutional. But until that happens, the taxpayers must know how detrimental this is, what it costs and that it too must be removed as law along with the sentencing commission as soon as possible.



Wednesday, April 2, 2014

Kids For Cash: Part I

            This terminology is known in both criminal and juvenile justice circles throughout the world for something that occurred in Luzerne County, Pa. in 2008. I am sad to report that Kids For Cash is a succinct description of the scheme of two trial court judges assigned to juvenile court who concocted it to receive kickbacks of cash for each child detained in a privately-owned detention center located nearby.

            Former Judges Mark A. Civarella, Jr. and Michael Conahan were convicted in federal court of taking $2.6 million, illegally, paid for their commitment of kids as young as 10 to the detention center. Every child committed requires that the county be billed for needed services to the tune of $150 or day or more. Ciavarella was sentenced to 28 years in federal prison and Conahan got 17 years.

            A juvenile detention center is comparable to an adult prison. Both involuntarily detain the defendant while the case is pending. Juvenile detention is three to five times more expensive for taxpayers than adult prisons.

            Kids For Cash is now a full-length documentary funded by the MacArthur Foundation. It premiered in early February 2014 in Philadelphia. 

            The ‘powers to be’ called for the Pennsylvania legislature to fund a complete study to learn what action could be taken to prompt reforms. Funding was granted and study members were appointed. Immediately after the release of the report of the Inter-branch Commission on Juvenile Justice on May 27th, 2010, elected officials and many professional organizations called for implementation of every one of the commission’s recommendations. This has been done.

            I must state with pride that our juvenile court system in Berks County has never experienced any signs of anything even remotely related to any scandal. The procedural and substantive rights of our youth and their families are paramount, and I say with honor that they always will be. In fact, there really was no need for drastic legislation to correct the problem because throughout Pennsylvania the law is being followed and every child’s procedural due process rights are protected. The new regulations insure that those protections continue and that such a terrible event does not happen again. So how could it happen?

            Could it be that the average person is in support of a tough, no-nonsense approach to punishment that meant that every kid gets time in detention? This mirrors what exists now in criminal court, where more adults go to jail with much longer sentences. It can be tagged as zero-tolerance; perhaps it is mandatory minimum sentencing that equates to at least some time spent in jail.

            Judges are prohibited from having any policy for mandatory minimum sentencing where everybody in that class or category receives the same minimum sentence. That’s because judges must sentence on an individual basis considering the law, evidence and arguments in each specific case. A judge’s personal or court policy of a defendant getting pre-determined jail time, probation or any other sentence, as a policy, is in violation of due process rights and thus will be struck down on appeal.

Next week Part II of Kids For Cash, how did they get away with it for so long that Judges could receive $2.6 million in kickbacks for systematically putting kids in detention?