In Tapia v. United States the Supreme Court held that under Federal statutory law judges can not consider rehabilitation in determining how to sentence a defendant or the length of the sentence. The Ninth Circuit last week in United States v, Grant held that Tapia applied not only to the original sentence but also to violations of supervised release conditions.

Leon W, Grant was convicted of two counts of bank fraud. He was sentenced to two days in jail and five years supervised release. Among the conditions of the supervised release was that he abstain from alcohol and drugs. But it became apparent that he was unable to do so. Eventually the court sentenced him to two years in prison, a sentence significantly above the guidelines, in order that he could be rehabilitated. The Ninth Circuit revoked the sentence and remanded the case for resentencing.

Generally when we incarcerate a person we do it because they intentionally committed an act that violates societal rules. Leon Grant is an addict. The court found that he had no control over his behavior. While he certainly needed rehabilitation, we do not generally deprive an individual of his/her personal liberty for for long periods ¹ for acts for which were not committed intentionally.

While most prisons have rehabilitative programs,they generally do a poor job of rehabilitation. Often they do not have the resources to provide rehabilitation to everyone who needs it. There is a long wait to get into a program and rehabilitation has only a limited effect when people are in a location where they do not have access to drugs or alcohol. The real test occurs when they leave the prison. But by then they no longer have access to the rehabilitative facilities and they often relapse.

Manhattan Borough President Scott Stringer called for a reduction in the city’s stop and frisk policy. Last year the NYPD made 600,000 stops and this year they will probably make 700,000.

Most of the stops are of young African American and Latino men. Over 85 percent of the stops are of non-whites. A young African American or Latino is nine times more likely to be stopped than a white person. Yet only seven percent of these stops result in arrests.

Under Terry v. Ohio in order to stop someone, an officer must have a reasonable suspicion that the individual is involved in criminal activity and in order to frisk that person the officer must have a reasonable suspicion that the person is carrying a weapon.

But all too often officers, knowing that they do not have a reasonable suspicion that the young person of color is involved in criminal activity of carrying an illegal weapon stops and frisks the individual any way. Sometimes they do it purely for harassment. Other times they do it because they hope to get lucky and find that the person is either on parole or probation with a search clause allowing the officer to search the individual without a reasonable suspicion of wrong doing. Third world members are often so used to being searched that they consent to what would otherwise be an illegal search. If they consent to the search anything found on them (drugs, guns, etc.) can be used against them in court. And sometimes, to be honest, police write false reports, alleging consent when consent was not given. Knowing that a DA, a judge or a jury is more likely to believe a police officer than a minority youth.

One of the problems with the extraordinary number of searches of minority youth is that they and their families learn not to trust the police. As a result they do not cooperate with officers who are investigating crime and do not reports criminal acts to the police.

Brian Charles Olinger plead guilty in 2009 to failure to register as a sex offender. He was sentenced to 15 months in prison and 120 months of supervised release. Among the conditions of his release were that he not view pornography and that he not use a computer with internet access.

While checking on another sex offender who stayed in the same hostel as Olinger resided at probation officers learned that Olinger had access to a computer that might have pornography on it. The officers seized the computer and found approximately 1500 pornographic images, including around 200 images of child pornography on it. The probation officer filed a petition alleging numerous violations of the supervised release. Olinger eventually admitted to three violations: accessing a computer with internet access without the permission of his probation officer, associating with a felon and possession of alcohol. He was sentenced to eighteen months imprisonment and 120 months of supervised release. It was admitted that the government could not prove that he viewed the pornography. At least three other people had access to the computer and while there was evidence pointing to his viewing the pornography it could not be proved.

He appealed on both procedural and substantive grounds. Substantively he argued that the sentence was too long since the sentence was three times the minimum sentence. The court found the violations of his supervised release to be serious and it noted that the computer had pornography on it. The appellate court could not find an abuse of discretion on the part of the District Court judge and did not find a substantive violation. The procedural violations were reviewed for plain error since Olinger did not object at sentencing.

Procedurally Olinger claimed that the court wrongly based its sentence on factors listed in 18 USC § 3553(a)(2)(A) instead of 18 USC § 3553(a)(1). Section 3553(a)(2)(A) deals with the seriousness of the offense while § 3553(a)(1) deals with a breach of trust. However Olinger did not convince the court that the trial court emphasized the seriousness of the offense. One of the factors under § 3553(a)(1) is the nature and circumstances of the offense. This may well be what the court was referring to. As a result the Tenth Circuit Court of Appeals upheld the sentence, finding neither procedural or substantive error.

Lindsay Lohan is in a difficult position. She is facing both a hearing on whether she violated her probation and a felony trial for grand theft. She is on misdemeanor probation for a third DUI. She could get up to a year on the probation violation since it is a third DUI with credit for the time she has done on prior violations and she could get up to three years in prison for the felony. More likely she will be placed on felony probation but she could do up to a year in jail as a condition of the probation.

As to the felony she is entitled to a trial where in order to convict her twelve jurors will have to find that beyond a reasonable doubt she is guilty of the grand theft. But on the probation hearing she is not entitled to a trial. She gets a hearing before a judge who can send her to jail if he/she finds by a preponderance of the evidence that she violated her probation.

Lohan has been offered a plea bargain which presumably ¹ will cover both the probation violation and the grand theft charge.

If she does not accept the plea bargain she is facing a hearing. The hearing will serve as both a preliminary examination in the felony case and a probation violation in the DUI. During the hearing the judge will be put to the difficult task of applying two different standards of proof. As to the probation hearing he/she will use a preponderance of the evidence standard. That means that to find her in violation of her probation the judge must find that there is more evidence that she violated her probation than there is evidence that she did not. But as to the felony the judge need only find that there is probable cause that she committed the felony to hold her for trial. ² Probable cause means that there is reason to believe that a crime was committed and that the defendant is the one that committed the crime. It is a much lower standard than preponderance of the evidence.

Furthermore the probation violation hearing and the preliminary examination have different evidentiary rules. Hearsay is admissible in the preliminary examination but not in the probation violation hearing. Thus a judge must keep track of what evidence comes in for what purpose.

The better practice according to the California Supreme Court is to have separate hearings for the two cases but at least according to the Associated Press article a single hearing will be held.

To make matters worse for Lohan, she could be sentenced immediately after the hearing to a jail term on the probation violation but the felony trial, even if she does not waive time could be ten weeks later. ³Thus she could be in jail prior to her trial and if she is found guilty at trial she could be sentenced to a jail period consecutive to the time she is doing on the probation violation. Of course by accepting a plea bargain she will be sentenced to only one period in jail for both the violation and the felony. She will not have to worry about a consecutive sentence. However she will lose her right to a trial.

Robert Lozano, Sr. was tried and convicted for attempted possession of marijuana for sale in Barrow, Alaska. The charges were based on the controlled delivery of a package sent to him from California.

At the trial, the government introduced evidence, including marijuana, found in a probation search ¹ of his residence eight months prior to the controlled delivery. Lozano objected. But the admission was upheld by both the trial court and the appellate court.

Federal Rule of Evidence Rule 404(b)

provides that the district court may admit evidence of prior bad acts if it (1) tends to prove a material point; (2) is not too remote in time; (3) is based upon sufficient evidence; and, (4) in some cases, is similar to the offense charged.

The Ninth Circuit found that the marijuana seized in the probation search met the criteria. It proves that Lozano knew what marijuana was. Eight months is not too distant in time. Money smelling of marijuana, in the earlier search, was found in Lozano’s room and therefore it was backed by sufficient evidence. Finally, marijuana was found in both the probation search and the controlled delivery. But even if it was admissible under Role 404(b) its probative value must substantially outweigh by the danger of unfair prejudice for it to be admissible under Federal Rule of Evidence 404. The court found that “evidence of prior drug distribution is clearly probative of Lozano’s intent and knowledge, and prejudice was limited by a cautionary instruction” ²

Based upon Ninth Circuit precedent the court found that probable cause was not necessary to seize the marijuana. Only a reasonable suspicion is necessary and that existed based upon questions, such as do they search packages for drugs asked of the postmaster by Lozano ³ prior to the delivery. ⁴

Finally the court found that the 22 hours that passed between the seizure of the marijuana and its search by a drug smelling dog in Fairbanks was reasonable based upon the dog not being available in Barrow.

The statistics are shocking. Human Rights Watch reported in 2000 that in seven states 80 to 90 percent of those sent to prison for drug offenses were African American. ¹ In at least fifteen states African Americans were sent to prison from twenty to fifty-seven times as often as white men. In 2000 twenty-six times as many African Americans were sent to prison for drug offenses as in 1983. Likewise the number of Latinos sent to prison increased by 22 times between 1983 and 2000. While the majority of drug users and drug dealers in this country are white over three quarters of those sent to prison are African American and Latino.

In another study published in 2000 white students used cocaine seven times as often as African American students, used crack eight times as often, and used heroin seven times as often. White youth between 12 and 17 are a third more likely to have sold illegal drugs than African American youth. Yet African American Americans are more likely to be prosecuted, convicted and imprisoned.

Among youth who have never been sent to prison, African American are more than six times as likely to be sent to prison for identical crimes. African Americans account for 16 per cent of all youth, 28 per cent of juvenile arrests, 35 per cent of juveniles tried in adult court and 58 per cent of juveniles sent to adult prisons.

Approximately 90 per cent of those sent to prison for drug crimes in Illinois are African American and 55 per cent of the African American men in Chicago have felony records. Nationwide one in three young African American men are either in prison or jail or on parole or probation.

Alexander says that the mass incarceration of the last thirty years serves the same function of racial control that slavery and Jim Crow held for prior generations. While it is no longer acceptable to openly express racist ideas, But the vast difference in drug arrests, prosecutions, and convictions between Whites and minority, despite evidence that Whites violate the law at least as often as African Americans and Latinos can leave no doubt that racism plays an important role in our criminal justice system.

While the laws appear to be colorblind, Alexander points out the tremendous degree of discretion granted to police and district attorneys in deciding which cases to arrest and prosecute. Recently there have been articles in press regarding the large database of citizens in New York City who have been stopped and who have either been frisked or consented to searches, some leading to arrest. The vast majority are African American or Latino. Consent searches or incidents where officers “stop and frisk” citizens happen nationwide. Despite the tremendous invasion of privacy that occurs when officers stop an individual without probable cause and often even without a reasonable suspicion, “consent” searches occur regularly and the police have the discretion to decide who to stop, search and frisk. The vast majority of times it is a young African American male who is stopped and searched. It is this discretion on who to stop and who to search that leads to the extraordinary increase in the number of African Americans who are incarcerated as part of the War on Drugs.

The lifelong effect of these convictions, as pointed out by Alexander is overwhelming. Once convicted of a felony the person can not get public housing or governmental benefits. They are unlikely to be able to get a job or schooling. Furthermore while incarcerated they learn skills to use in future crimes. The inability to get jobs affects their families and future generations.

The Pew Center on the States issued a new report, One in 31: The Long Reach of American Corrections. According to the report one out of every 31 people in this country are under supervision of the criminal justice system. This includes 1,512,576 in prison, 780,581 in jail, 4,293,163 on probation and 824,365 on parole. The total number who are either incarcerated or on supervision is 7,328,200. That is 3.2 per cent of the adult population. The figures, however vary widely by state and location from 1 in 13 in Georgia to 1 in 88 in New Hampshire.

The report points out that the more people we imprison the less we benefit from the incarceration. There are certainly individuals who’s incarceration protects lives and property. But the more people we incarcerate the less the value to society of the additional incarcerations. Thus many prisoners can be released with relatively little harm to society.

To make matters worse the system is quite racist. Over nine percent of African Americans and 3.7 per cent of Hispanic Americans are either incarcerated or under supervision. This can be compared to only 2.2 per cent of White, non-Hispanic, Americans.

The Pew report concentrates on the cost of maintaining a huge number of people in prison and jails. The 50 states spend approximately 52 billion dollars on corrections, a 300 per cent increase over the last 20 years. When we consider all levels of government the cost has increased by 330 per cent since 1986. This can be compared to a 205 per cent increase in education, an 82 per cent increase in transportation, a 125 per cent increase in higher education and a 9 per cent increase in public assistance. Only Medicaid costs have grown faster than the cost of corrections. While they could only find statistics for 34 states the cost of keeping a person in prison or jail was $79 per day. The cost of supervising a parolee is $7.47 and a probationer is $3.42.

The report recommends a six step program that will reduce crime and at the same time reduce the cost of corrections. First, it suggests that we sort offenders by the risk they pose to public safety. According to report there are a number of risk assessment tools that take into consideration factors such as age at the time of their first arrest and current drugs use that while not being perfect help to predict danger to society.

Second, community treatment modalities must be based on current scientific models. Individualized evidence based plans can reduce crime by 10 to 20 percent and in some cases recidivism can be reduced by 30 per cent.

Third, the use to technological innovations such as electronic monitoring, GPS, and substance testing can be used to inform probation officers of the whereabouts of individuals and their alcohol or drug use.

Fourth, research has found that the use of swift, certain, and proportionate sanctions for criminal activity and supervision violations are more important than the lengthy incarceration.

Fifth, incentives for success are necessary. It is not only necessary to provide benefits for successful defendants but it is also necessary to reward successful agencies and to have means to measure results.

Finally, It is necessary to measure progress It is necessary to determine tje results by measuring recidivism and by increasing the amount money available to use on budget items other than corrections.

A relatively reasonable reduction in prison populations can result in major savings to the state, a decrease in crime, increased money for other budgetary needs and a significant increase in community treatment for offenders.

The Sixth Appellate District of California’s District Court of Appeal found that a probation condition in People v. Murrillo requiring the defendant to take all prescribed medication was vague and that it may have been overbroad.

Angela Murillo, age 21, was charged with having sex with a minor, her sixteen year old boyfriend. She was quite remorseful during her probation interview. She told the probation officer that she had taken drugs since she was ten years old and that she was an alcoholic. Furthermore she said that she used a inhaler for asthma and that she had been diagnosed with ADHD and bipolar disorder but that she did not take any medication for mental disorders.

At sentencing Murillo’s counsel objected to three of the probation officer’s recommendations: 1) chemical testing, 2) possession or consumption of drugs or alcohol or being any place that either of them were being used or sold, and 3) entering a rehabilitation program. the court accepted the probation officer’s recommendation and added two more conditions: that Murillo obtain psychological counseling as directed by probation and that she take all medications prescribed by her doctor. The trial Court asked Murillo whether she accepted the conditions and she agreed to them.

On appeal she objected to the condition that she refrain from use of alcohol and that she take all prescribed medications on the grounds that they were not related to her criminal behavior. The Appellate Court found that the alcohol condition related to her criminal behavior in that she had a long term history of alcohol abuse and that alcohol reduced inhibitions and could lead to future criminal conduct.

As to the requirement that take all prescribed medication the court found the condition vague since under the facts of the case it is not clear whether the judge meant that she had to take all prescribed medications or just psychiatric medications. There is no evidence that she failed to take any medication for physical problems. Therefore, there is no relationship between taking physical medications and criminal behavior. As a result the condition is an abuse of discretion.

But the question remained whether by failing to object to the conditions at sentencing, Murillo waived the right to object on appeal. The court found that there was no logical reason for her not to have objected at trial and therefore the failure to object was incompetence of counsel. The court found, citing In Re Sheena K., Murillo did not waive the right by failing to object at sentencing. Under the Sheena K. test waiver occurs if proof of the illegal condition needs the fact finding ability of the trial court. In this case only the trial court can determine whether the condition is unconstitutional and therefore the failure to object result in waiver. But because the appellate court found incompetence of counsel without needing a factual input from the trial court waiver is not an issue.

Before remanding the case to the trial court for a determination of the necessity of requiring the defendant to take psychiatric medications the appellate court put forth several issues for the trial court’s consideration. First, since the medication issue infringes Murillo’s right of privacy any condition must be closely tailored to an important state right. Second, Murillo has a Fourteenth Amendment liberty interest protecting her from the forced taking of psychotropic medication and any probation condition enforceable by jail or prison is a coerced. Citing Sell v. United States the Court found that the Court should consider the following conditions before order the taking of psychotropic medications: 1) that an important governmental interest is at stake, 2) that the involuntary taking of medication will insure a timely prosecution and a fair trial (its hard to see how this is appropriate in a post conviction probation sentencing) 3) that the involuntary use of medication will significantly further the state interest, and 4) that the taking of medication is medically necessary.