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 Fort Wayne Police Department received a tip that drugs were being sold at the residence of Michael Chapman. Chapman was on electronic monitoring in lieu of a jail sentence. In order to get the electronic monitoring he waived his rights against unreasonable searches under the Fourth Amendment. Therefore a police task force went to his house to search it. Two officers knocked at the front door and two more surveilled the back door. After the officers started knocking on the front door, Eddie Lamar Carlyle ran out the back door with a backpack.

The officers handcuffed him and seized the backpack. They found marijuana, crack. a scale, a spatula and packaging materials in the backpack. After he was arrested Carlyle moved to suppress the evidence as being seized without probable cause. The trial court denied his motion on the grounds that he did not have standing to object to the seizure. At the hearing on the motion he denied that he owned the backpack. He testified that the backpack belonged to Chapman asked him to put the backpack in the garage.

The Court denied his motion saying that he did not have standing. In determining whether a defendant has standing to suppress evidence the Seventh Circuit Court of Appeals looks at five primary factors:

(1) whether the defendant had a possessory [or ownership] interest in the thing seized or the place searched, (2) whether he had the right to exclude others from that place, (3) whether he exhibited a subjective expectation that it would remain free from governmental invasion, (4) whether he took normal precautions to maintain his privacy, and (5) whether he was legitimately on the premises.

He denied having an ownership interest in the backpack, but claimed to have a legitimate possessory interest in the pack since Chapman handed it to him. He exhibited the right to exclude other, except for Chapman. But at the same time he testified that he did not know what was in the bag. At the trial court hearing on the motion to suppress, Carlyle did not claim to have a subjective expectation of privacy in the backpack. Without such an expectation the appellate court ruled that he did not have standing to object to the seizure.

From the point of view of a trial attorney one needs to make strategic decision prior to filing a motion to suppress evidence. You need to make sure that your client has both a subjective and an objective expectation of privacy. You do not want to put your client on the stand to testify that he/she has possession of the contraband for the purpose standing if you plan to have your client take the stand at trial and deny a possessory interest in the contraband. Sometimes it is worthwhile to pass up a motion to suppress evidence in order to have a chance at trial. Once your client gets on the stand and admits to possession at the hearing on the motion to suppress evidence you lose your ability to negotiate the case and you set your client up for DA’s cross examination at trial.

A confidential informant told the Kansas City Drug Task Force that Ishmael Kedar Harris was selling drugs in the Kansas City area. They saw him with a duffel bag driving a truck. After following him for a short distance they requested the Grandview Police Department to find a reason to stop Harris. After following him for a couple of blocks a Grandview officer stopped him for having a tinted driver’s license cover. Tinted license cover are legal in Missouri as long as the tag is clearly visible.

They asked for permission to search the vehicle. Harris told the officer that it was his girl friend’s car. They called the girl friend who refused to consent.

A drug dog was brought to the scene and signaled the presence of contraband. This gave the officers probable cause to search the vehicle. They found a gun and three pounds of marijuana. Using this information they got a search warrant for Harris’ house where they found 29.7 pounds of marijuana.

The statute says that the license plate must be “clearly visible.” The officer testified at the hearing that he had to get right up on the tale of the vehicle before he could read the tag. The judge found the officer credible and denied the motion to suppress the evidence.

The appellate court found that it was a question of credibility. Since the trial judge’s decision is not “clearly erroneous” the appellate court denied the appeal.

One issue that is not discussed in the decision is the length of the stop. The length of a traffic stop is limited to the amount of time it takes to handle the situation for which there is probable cause. In this case it would be limited to the amount of time it would take to give Harris a ticket for the license plate cover and to check his ID and warrants. Nothing is said in the decision but I wonder if the time it took to call the girl friend and to bring the dog to the site where the car was stopped exceeded the time necessary to give the ticked, check for his ID and warrants.

Congress passed a bill authorizing the Federal government to petition the courts to institutionalize an offender beyond the time of his/her maximum sentence if that person either committed or attempted to commit an act of sexual violence or child molestation and the offender is a danger to society.

Four Florida inmates challenged their commitments under 18 U. S. C. §4248 in United States v, Comstock on the basis that the Constitution does not grant the Federal government authority to institutionalize them beyond their maximum prison commitment. Article I of the Constitution grants Congress specific limited powers. The Tenth Amendment states that all powers not granted to the Federal government are reserved for the states.

Despite the defendants arguing that Congress was without authority to commit individuals after their sentence was completed, the Court ruled that the legislation was authorized by the Necessary and Proper Clause, under which Congress can pass any law necessary and proper to the carrying out the duties enumerated in Article I. For example, one of the enumerated duties authorizes a postal service. The building of post offices is a necessary and proper tool to establishing a postal service.

The court evaluated five factors in determining that the post-prison commitment of sexually violent inmates is necessary and proper means to carry out its duty to provide mental health care for Federal prisoners. The factors are “(1) the breadth of the Necessary and Proper Clause, (2) the long history of federal involvement in this arena, (3) the sound reasons for the statute’s enactment in light of the Government’s custodial interest in safeguarding the public from dangers posed by those in federal custody, (4) the statute’s accommodation of state interests, and (5) the statute’s narrow scope.” The Court ruled that the Necessary and Proper Clause allows Congress to pass legislation that is convenient, useful or conducive to carrying out one of its assigned duties. The Court found that while it is not independently proof of constitutionality the government has a long history of legislating prison mental health issues. Congress reasonably enacted the legislation to protect people who lived near Federal prisons from sexual violence by released inmates. The statute allows the Federal government to institutionalize those who would otherwise be released only after the states in which they were arrested and in which they live refuse to take custody of a dangerous inmate. Finally the court found that the post-prison institutionalization of sexually dangerous inmates was not too attenuated from Article I duties of Congress.

Justice Clarence Thomas dissented. He points to the pivotal 1819 case, McCulloch v. Maryland, Chief Justice Marshall wrote:

“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”

Thus to be constitutional it must

satisfies a two-part test: First, the law must be directed toward a “legitimate” end, which McCulloch defines as one “within the scope of the [C]onstitution”–that is, the powers expressly delegated to the Federal Government by some provision in the Constitution. Second, there must be a necessary and proper fit between the “means” (the federal law) and the “end” (the enumerated power or powers) it is designed to serve.

The only crimes the constitution specifically authorizes the Federal government to prosecute are counterfeiting, treason, piracy, crimes committed on the high seas and those against the Law of Nations. No one today would limit the Federal government to prosecuting those crimes. Certainly any number of crimes can be prosecuted under the Necessary and Proper Clause. But it is time to reconsider some of the crimes prosecuted by the Federal government. For example, is it really necessary to have the federal government prosecute drug, sex, and internet crimes. The basic police duties of government should be left to the state governments.

Franklin Woods plead guilty to conspiring to manufacture fifty grams or more of methamphetamine. He was sentenced to 108 months. In determining his sentencing guidelines the District Court applied an enhancement for possession of a firearm. There was no evidence that Woods had a firearm or that he knew that a firearm was present. The evidence of manufacturing was found in a co-defendant’s residence. But the District Court assumed that Woods knew that there was a high likelihood that a gun would be present in a residence used to manufacture methamphetamine.

The District Court found that Woods was responsible for 53.64 grams of methamphetamine, which has a value of approximately $5,000. The Sixth Circuit Court of Appeals remanded the case to the District Court for resentencing. Previously it has determined that when there is a large amount of narcotics it is safe to assume that one of the defendants has a gun. But in those cases, barring evidence to the contrary, it has never assumed that a co-defendant had a gun when the value of the drugs was less than $60,000.

What I do not understand is why based solely upon the value or the quantity of the narcotics one can assume that a gun is present. Certainly it is not unusual to find a gun when narcotics are present. Often a gun may be present when the value of the narcotics is considerably under $60,000. But if we assume that those who would conspire together to manufacture of sell drugs know each other fairly well, based upon their knowledge of each other or the history of their relationship they may know whether a gun is likely to be present or not be present. Certainly there are any number of cases where guns are not present.

Louisiana lawmakers are considering legislation that would require all people who have been convicted of two felony drug offenses to have the words “Drug Offender” printed in orange on their driver’s license. The bill which is sponsored by Rep. Rickey Hardy, D-Lafayette has been unanimously approved by the House Committee on Transportation, Highways and Public Works. Now it will go before the full House.

Louisiana already requires certain people convicted of sex offenses to have the words “Sex Offender’ printed on their license.

According to its supporters the legislation will help law enforcement officers. But the effect of the legislation would be to destroy the lives of ex-felons who may no longer be involved with narcotics. Driver’s licenses are used for many things. You cannot cash a check, rent an apartment, or get governmental services without showing your driver’s license. Thus the effect of the legislation may be to force ex cons to go homeless. steal merchandise, or go without vital services.

Furthermore any assistance to peace officers is minimal at best. Arrests can only be made upon a showing of probable cause. And probable cause cannot be based upon past convictions. It can only be based upon current information. It may result in police officers making arrest and performing searches without probable cause and these cases would have to be thrown out by the courts.

Thus while providing little benefit it would make it more difficult for ex offenders to get jobs, housing, and benefits. I guess the only way they will be able to survive is by selling drugs. Good job legislators!

The old adage, “justice delayed is justice denied” has once again been proven true. Twenty years ago Erick Flores-Rivera was arrested and the government seized his new Jeep Cherokee, $1,903 in cash, and other items. All parties admit that the seizure was without proper notice and therefore illegal. Flores-Rivera plead guilty to two counts in January 1991 and was sentenced to twenty years in prison.

From 1992 to 1999 the government used the vehicle and then sold it for $6400. During this period Flores-Rivera entered into a contract with the government to make installment payments on a fine that was imposed upon sentencing.

Throughout this entire period Flores-Rivera diligently attempted to get his vehicle and his money back. In 1999 the government conceded the illegality of the seizure and the need to return the property to Flores-Rivera. But it was not until 2006 that the government requested the court to set a hearing date. But no date has yet been set. In 2006 the government said it did not know what happened to the vehicle or the car. In 2007 it reported that the car had been sold and the money placed in a forfeiture fund.

In July 2006 an attorney was appointed to represent Flores-Rivera but he was not informed of the appointment until 2008.

In November 2008 the First Circuit Court of Appeals, upon a further motion from Flores-Rivera ordered the District Court to determine the value of the seized property. The District Court ignoring the Circuit Court order and the contract to repay the fine ordered without a motion from the government that the forfeited property to be used towards paying Flores-Rivera’s fine.

Finally in 2009 the Federal Public Defender is appointed to represent Flores-Rivera.

So what does the First Circuit do when it gets the case back in 2010. Does it order immediate payment including interest and rent on the vehicle for the period that the government used the vehicle? No, while admitting that “further delay is unacceptable,” it ordered that “the district court should promptly conduct a hearing, follow the applicable statutory procedures, and otherwise provide Flores with the long-delayed process to which he is entitled.” It sounds like its back at square one and another twenty years of litigation is to follow.

Charles Dickens started Tale of Two Cities with “It was the best of times. It was the worst of times. . .” Well if you are in San Francisco and you’re charged with a drug crime it may be the best of times and if you work for the police crime lab it may be the worst of times.

Last December the Police Department was notified that one of its supervising chemists, Deborah Madden was stealing cocaine from the laboratory for her own use. But the District Attorney office was not notified until February. By then other allegations had come up regarding the crime lab including problems involving chain of custody issues and contamination of the tested substances. Now we learn that Madden was not only using cocaine but she may also have taken oxycontin from the laboratory,

Furthermore it has been learned that Madden was convicted of domestic violence charges in nearby San Mateo County. The failure to notify defense counsel of the conviction may be a Brady issue. In Brady v. Maryland the Supreme Court ruled that a prosecutor and the police department must turn over evidence that may be helpful to a defendant to his/her attorney. This would include evidence that a prosecutorial witness committed a crime of moral turpitude. But evidence of Madden’s charges and conviction were only partially turned over earlier this month to defense counsel.

The crime lab was closed last month and drugs have been sent out to other communities for testing.

The number of cases affected is unclear. But the District Attorney’s most recent count is that 500 cases have been dismissed and another 1900 will be dismissed. This only includes open cases. Other cases, where convictions have been obtained may be reversed on writs of habeas corpus.

The Ninth Circuit Court of Appeals ruled that Washington’s law banning felons from voting violated the Voting Rights Acts since the criminal justice system is racist and tends to search, arrest and convict African Americans in a greater number than their proportion of the state’s population.

In Farrakhan et al v. Gegroire et al that the racist nature of the state’s criminal justice system was the only possible reason for the high percentage of African Americans arrest and convicted of crimes in Washington.

The Court stated that Congress passed the Act for the “broad remedial purpose of ridding the country of racial discrimination in voting” as part of its duty to enforce Section Two of the Fifteenth Amendment. Section 2(a) of the Act as it is currently amended states:

No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a
manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color . . . .

The plaintiffs, all parolees, provided “compelling” by expert witnesses that:

the racial disparities in the state’s criminal justice system cannot be explained by “legitimate” factors, such as racial minorities’ higher level of involvement in criminal activity. . . evidence of “unwarranted” racial disparities in the rates of vehicle searches, . . . and “observable racial differences” in the processing of criminal cases (e.g., charging and bail recommendations, lengths of confinement, and alternative sentencing) . . .

Among the findings of the experts is that

African Americans in Washington State were over nine times more likely to be in prison than Whites, even though the ratio of Black to White arrest for violent offenses was only 3.72:1, suggesting that substantially more than one half of Washington State’s racial disproportionality in its criminal justice system cannot be explained by higher levels of criminal involvement as measured by violent crime arrest statistics. A
study of the Washington State Patrol shows that Native Americans were more than twice as likely to be searched as Whites; African Americans were more than 70 percent more likely to be searched than Whites; and Latinos were more than 50 percent more likely to be searched. A study of the Vancouver, Washington Police Department (“VPD”) indicated that of those stopped for traffic violations by the VPD, African Americans are nearly twice as likely to be searched as Whites, and Latino were three times more likely to be searched. This,despite the fact that searches of Whites more frequently resulted in the seizure of contraband than searches of African
Americans and Latinos.

The witnesses also proved that “blacks and Latinos are overrepresented, and whites underrepresented, among Seattle’s drug arrestees,” and that “the organizational practices that produce these disparities” — specifically, the police’s focus on crack cocaine, on outdoor drug activity, and on the downtown area — “are not explicable in race neutral terms.”

The effect of racism in the criminal justice system is that more African Americans, Latinos and American Indians are denied the right to vote and therefore the law banning felons from voting violates the Voting Rights Acts and therefore the law banning felons from voting is void.

The decision creates a split in the circuits and Washington officials have announced their intention to appeal the decision.

Recentlly, measures to legalize marijuana have been introduced in Washington and New Hampshire. Earlier this year simillar measures were introduced in California and Massachusetts. Other states are considering proposals which would either legalize medical marijuana or decriminalize its possession. In California, sufficent signatures have been raised to place legalization on the ballot.

The Washington bill would mandate the sale of marijuana in the 160 state run liquor stores and it place a 15 per cent tax on the sales. In Washington, as in other states, measures to reform marijuana laws are largely motivated by the need to find new sources for taxes.

According to Allen St. Pierre, executive director or NORML, a marijuana advocacy organization, fourteen states legalize medical marijuana and thirteen states passed decriminalization statutes.

While there is increased support for reform of marijuana laws it is unlikely that marijuana will be legalized in any state this year. There is still much opposition. Ron Brooks, president of the National Narcotics Officers’ Associations’ Coalition, for example, points out that legalization may lead to more automobile accidents.

But the stimulus for reform is growing and we are likely to see major change over the next several years. After all fifteen years ago medical marijuana was unheard of.