The Criminal Lawyer

Tomorrow’s issue of the Economist has a brief piece on some new drug policing in Virginia: “Cleaning Up the Hood: Focusing on drug markets rather than users means less crime.” The article is on DMI, or Drug-Market Intervention, a law-enforcement strategy that has been spreading around the country since it was first introduced in North Carolina about eight years ago.

DMI is a combination of community involvement and police commitment that focuses on street dealers. The community is encouraged to report dealers. Police then notify the dealers that they know who they are, but promise not to arrest them if they take part in an intervention. The dealers are confronted with community leaders who show them what their dealing is doing to the community — and who promise to help them change their ways if they’re willing. The dealers are given a second chance. Meanwhile, the police increase their presence in the area, and those caught dealing now get locked up. Quick police response and community involvement increases people’s willingness to report dealers, and a cycle begins.

Law enforcement has long known that you don’t eliminate a drug problem by going after demand — addicts and users are too numerous, and no matter how many you lock up they just keep coming. Meanwhile, street dealers continue to operate, destroying the safety and livability of the community. The addicts they attract, the nastiness they inflict, the violence they commit, and the fear they instill all combine in ruinous ways, engendering more crime and blight.

Buyers are easy to arrest, though, and if a police force is going to be judged by its arrest numbers rather than actual results (as politicians are wont to do), then there is a strong temptation to arrest the users. Not only does this do nothing to stop the dealing problem, the users are typically charged with modest possession offenses that put them right back out to buy again.

Drug courts and similar diversion programs do actually work wonders with helping users break their drug habits and overcome the life-skill deficits that often led to them. But those programs are typically reserved for those charged with crimes to begin with, many times only those charged with felony possession, and of those only the defendants who are likely to succeed in the program to begin with. They’re great, but they don’t solve the underlying problem.

These DMI initiatives recognize that, like so much else in society, it is (more…)

The Supreme Court is back in session on Monday, and we’re not ashamed to admit that we’re excited.  As always.  And they’re starting off the argument season with a bang — a critical issue on federal sentencing of gun crimes.  Can’t wait.

The case is actually two cases, Abbott v. U.S. and Gould v. U.S.  The issue is just what the heck 18 U.S.C. § 924(c) means.

§ 924(c) says, if you’re convicted of possessing a gun during a narcotics crime, you get a 5-year minimum sentence, to be served consecutively.  Unless, that is, “a greater minimum sentence is otherwise provided by this subsection or any other law.”

Such straightforward language, and yet capable of so many different interpretations.  Is it written to make sure that you get at least 5 years if you carried a gun during a drug crime?  Or is the point to make sure that you get at least an extra 5 years, added to the original sentence?

Does it mean that, if you’re already facing a mandatory minimum greater than 5 years for the gun, then § 924(c) doesn’t even apply?

Does it mean that, if you’re (more…)

Yesterday, President Obama signed S.1789, the long-awaited sentencing fairness act that reduced the appalling 100-to-1 sentencing disparity between crack cocaine and powder cocaine.  It still doesn’t go all the way to undo the hysteria of the crack epidemic, however.  For powder cocaine there’s a 10-year minimum for selling or possessing with intent to sell 5,000 grams — for crack cocaine the figure was just 50 grams, but that just went up to 280 grams.  There’s a 5-year minimum for selling/possessing with intent 500 grams of powder — for crack that just went up from 5 grams to 28 grams.  So there’s still a roughly 18-to-1 sentencing disparity.  And the 5-year mandatory minimum for mere possession of crack — personal use here — was eliminated entirely (it had applied to possession of 5 grams for first offenders, 3 grams for second offenders, and 1 gram for third offenders).

That’s all good news.  Getting rid of the mandatory minimum for mere possession is the best part, because throwing people in jail for mere possession is stupid, wrong, unjust, and doesn’t solve the problem.  Drug court and treatment diversion programs work very well.  (The new law also requires a federal report one year from now on just how well the federally-funded drug court programs are doing.)  Reducing the sentencing disparity from the appalling (and racist) 100-to-1, to the merely shocking (and still racist) 18-to-1… well, it’s better than nothing.  Powder and crack are equally bad, there is no disparity in their effects, their addictiveness, or anything meaningful.  There shouldn’t be any disparity at all.  But reducing it is a step in the right direction, and the new law is rightly praised for so doing.

But in all the hoopla, the press (and the defense bar) seem to have overlooked the other provisions of the new law — provisions which can dramatically increase some drug sentences.

There are now 2+ level enhancements for drug crimes involving violence or the threat of violence (not unheard of).  There are now 2+ level enhancements if premises were used for the manufacture or distribution (very common).  There will be 2+ level enhancements if the defendant was using his girlfriend to mule the drugs, or an addict to sell the drugs on the street in exchange for a freebie, or any other typical buffering relationship.  There will be 2+ enhancements if they sold to, or involved, someone under 18, someone over 64, or someone who was pregnant (common).  There are 2+ enhancements if the defendant made his living by selling drugs (a majority of cases, no?).

That’s just a partial list of enhancements.  But you can see how a typical drug defendant can now wind up facing significantly more time now than before Obama signed “the Fair Sentencing Act of 2010. ”

We can think of a number of ways to describe the new law.  “Fair Sentencing” is not one of them.

For as long as we can remember, the word on the street has always been that cops cannot lie.  So if you’re doing a drug deal with an undercover cop, and you ask him point blank if he’s a police officer, then he has to tell you the truth.  He might try to technically get out of it by saying yes in a sarcastic tone of voice, but he has to be able to testify later on that he did say he was a cop.

And for as long as we can remember, we thought that was dumber than dirt.  The first time we heard this, back in our dim and distant teens, we imagined something like this:

It just made no sense.  And, of course, it’s simply not true.  No undercover cop is ever going to jeopardize his investigation or his safety by admitting to the fact that he (or she) is a cop.  And there is no rule anywhere that says they have to.

But even so, this myth has persisted.  We can’t count how many cases we’ve dealt with where (more…)

Just a quick update.  The Supreme Court decided Dillon v. U.S. today (read the opinion here), and the decision totally sucks.  Here’s what we said about it a couple of weeks ago:

There are a lot of federal inmates serving unfairly long sentences, due to the bizarre discrepancy in sentencing for crack vs. powder cocaine.  (See our latest piece on this here.)  In 2007, the Guidelines were amended a teeny bit, permitting a 2-level reduction for crack cases.  In 2008, that was made retroactive, so prisoners could get resentenced.  Dillon wanted to get resentenced.  But he wanted more than the 2-level reduction.  He wanted a departure from the Guidelines recommendation itself, as permitted by Booker.  But the feds say Booker only applies to full sentencing proceedings, not to resentencings like this — this is just an adjustment of the guideline range that should have been applied to a pre-Booker sentence.  As Scalia pointed out at oral argument, that would require the courts to essentially disregard Booker.  And given the universal loathing of the crack/powder disparity, we think a finding for Dillon would give the courts the ability to take the injustice into account and impose variance sentences more proportional to those for powder.

But noooo.

Writing for a 7-1 majority (Stevens dissented, and Alito recused himself), Justice Sotomayor said that Booker doesn’t apply here — the Guidelines are not advisory, and have to be applied as they were back in the bad old days.

This is just infuriating.  The 100-1 disparity in sentencing for crack vs. powder cocaine is fundamentally unjust.  One would think that the judiciary would just wipe it out as simply unconstitutional.  But instead, we get the Supremes saying §3582(c)(2) — the whole point of which is lenity for those sentenced under the disparate Guidelines — doesn’t allow for any lenity beyond what the Guidelines themselves permit.

Sotomayor’s legal reasoning isn’t bad.  It’s actually pretty good.  But her result is appalling.

There are four Mondays left in June.  Four more days in which the Supreme Court is expected to announce its decisions in the 27 or so cases still out there this term.  That’s about one case per day from now till then.  We’re picturing the Justices pulling all-nighters, stacks of empty pizza boxes in the halls at 2 a.m. next to the burn bags (do they still use burn bags there?), and sleepy zombie-like clerks dropping in their tracks every now and then.

Some of those cases have to do with boring old civ pro or shipping or labor law.  But a whole bunch are about the cool stuff, criminal law.  Here are a few of the criminal cases we’re watching particularly closely:

Black v. United States
Weyrauch v. United States
Skilling v. United States

This trio of cases attack the “honest services” fraud law.  18 U.S.C. § 1346 was supposed to prevent political corruption, but Congress wrote it so sloppily that it’s become a catch-all crime for federal prosecutors.  Anyone can get charged with it, and nobody knows what it means.  The Court telegraphed its dislike of the statute during oral arguments of all (more…)

“Why is this case here, except as an opportunity to upset Melendez-Diaz?”

So wondered Justice Scalia during oral argument a couple weeks back in the case of Briscoe v. Virginia. For some background, see our previous post on this case here. Briefly, the Supreme Court held last year in Melendez-Diaz v. Massachusetts that, in a drug case, the prosecution cannot prove the existence of a controlled substance by merely introducing the lab report — the chemist has to testify, or else the Confrontation Clause is violated. There was a huge outcry from prosecutors’ offices across the country. It would be too much of a burden to get chemists to testify at every drug trial. There was a concerted effort to get around this new ruling, or better yet to get the Supremes to reverse themselves.

So in Briscoe, Virginia tried to get around the rule by saying the prosecution only needs to introduce a lab report, and if the defense wants to confront the chemist then the defense can subpoena the chemist as a witness.

More than half the state attorneys-general filed an amicus brief, arguing that the expense and administrative burden of getting chemists to testify at trial would just be (more…)

On June 25 last year, the Supreme Court held in Melendez-Diaz v. Massachusetts that in a drug case the prosecution can’t simply use a sworn lab report to prove the existence of a controlled substance. If the chemist doesn’t testify, it violates the Confrontation Clause. (See our previous post about it here.)

Four days later, on June 29, the Court granted cert. in Briscoe v. Virginia, to decide whether the states can get around this requirement if they permit the defendant to call the lab analyst as a defense witness. Oral arguments are scheduled for next Monday, and we can’t wait to hear how the Commonwealth of Virginia tries to make its case.

It seems to us that there is an obvious burden-shifting problem here. The state, and only the state, has the burden of proving every element of the crime. Since the Winship case in 1970, this has been a due process requirement of the Constitution. Unless he asserts an affirmative defense, the defendant has no burden to prove a thing.

So the prosecution has to prove an element. It needs a forensic test to prove it. It needs the testimony of the analyst to introduce the results of that test. The defense does not have a burden to prove anything, one way or the other, about the test.

But Virginia wants to be able to prove its case using only the lab report, and get around the Confrontation Clause by saying the defense is allowed to call the analyst if they want to confront him.

First, who cares whether the state allows the defense to call the analyst or not? Last time we checked, the defense could call any witness they chose, by subpoena if need be. The defense always has the opportunity to put the analyst on the stand as a defense witness. This “permission” doesn’t actually give the defense permission to do anything it couldn’t already do. All it does is imply wrongly that the defense couldn’t have done so otherwise.

Second, the state cannot impose a burden of proof on the defense like this. Virginia’s scheme essentially precludes the defense from challenging the state’s evidence during the state’s case. It forces the defense to act affirmatively and put on a defense case in order to challenge the state’s evidence. That’s a big due process violation.

Third, the state does not get around the Confrontation Clause by shifting the burden to the defendant to call those witnesses it wishes to confront. In a murder case, it would absurd to let the prosecution introduce an eyewitness’s written account of what happened, and no more, so long as the defendant himself could have called the eyewitness if he wanted to. That’s indistinguishable from what Virginia wants to do.

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Lots of prosecutors’ offices are hoping that the Supremes will side with Virginia on this one. Particularly in the more amateurish offices, there is a feeling that the Melendez-Diaz decision imposes too great a cost on the criminal justice system, and imposes unworkable inefficiencies, by requiring chemists to take time off from their busy jobs to testify at trial. An amicus brief filed by half the nation’s attorneys general makes these arguments.

But just look here at New York City, the busiest criminal courts and crime lab in the world. Lab reports are used in the grand jury, where there is no confrontation right, but the chemists themselves must testify at trial. Somehow, this requirement has not bankrupted the city. Getting the chemist to show up is just one more minor hassle that prosecutors have to deal with, no more challenging than getting cops to show up. The requirement is so minor that nobody really thinks about it.

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Still, Melendez-Diaz was a 5-4 decision. And one of the five, Justice Souter, has been replaced by former prosecutor Justice Sotomayor. So people are thinking that she’s going to be more pro-prosecution here, and help the Court either reverse or severely limit that decision.

We don’t think so. We’d remind Court observers that Sotomayor came out of the Manhattan DA’s office, not one of the “amateur hour” offices. Her own personal experience is that requiring the chemist to testify at trial is really no big deal.

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So we’re looking forward to the oral arguments next week. If Scalia gives as good as he did in last June’s decision, and if we’re right about Sotomayor, then Virginia’s in for a spirited beatdown.

The AP’s Sam Hananel has a nifty piece on Law.com today, called “Drug Courts Successful for Few Who Get In.” He sums up the situation fairly well. The short version is “drug court works, and with more funding it would work even more.”

A lot of crime is the result of drug addiction. Addicts deal drugs, rob, steal, burglarize and hurt people just to feed their addiction. Other crimes would never have happened but for that addiction. And addicts tend to keep committing these crimes over and over again. The damage to society is great, and the public cost of dealing with it is enormous.

So if we could somehow stop the addiction, the thinking goes, then we could prevent a large amount of future crimes and save ourselves a lot of resources. That’s where drug court comes in. If selected for drug court, addicts get treatment and counseling. And if they succeed, their case gets dismissed or reduced in the interests of justice.

That’s the carrot. There’s a stick, as well. Before entering the program, the offender has to take a plea. No judgment is entered, however. If the offender completes the program successfully, then they get their plea back. If they fail, however, then that plea can be enforced, and they face jail.

But a drug program that’s going to work is also going to be very hard to endure. Lots of offenders would rather just do the time, frankly. Because it’s not just about kicking the habit. Quitting is the easy part. Look at any population of inmates who can’t afford to maintain their drug habit while incarcerated, if you want to see “cold turkey” in action. The problem is, when they get out, they go right back into the same neighborhoods, with the same temptations, the same social pressures, and the same inability to just say “no.” They never rejoin lawful society.

So a decent drug program is going to hammer home, not only the ability to say “no” and keep pissing clean, but also the skills one needs to survive in law-abiding society. How to get a job, and keep it. How to take care of oneself, one’s family, and even put some savings aside. How to get that high school equivalency, or vocational certificate that can make all the difference in the world. It’s damn hard.

But it works. For those who graduate these programs, a mind-boggling 75% stay out of trouble. They’re cured. It worked.

Of course, a large reason why the success rates are so high is that candidates are cherry-picked by DA’s offices. Sources cited in the AP article complain about this selectivity, but in a world where the number of addicts vastly outweighs the resources available for treatment, it is hardly surprising that the government would focus its resources on those addicts most likely to respond to treatment. Accepting someone who’s probably going to fail is doubly unjust — it wastes tax dollars that could have helped another equally-needy addict, and it sets up the failer for the big stick punishment.

That big stick punishment is another complaint we’ve heard, and it pops up in the AP article, too. It’s not fair, they say, to require defendants to take a plea before they go into treatment. But these critics fail to recognize that it is a crucial part of the equation. Without the plea first, there is no incentive not to backslide. We’re talking about people who have already exercised poor judgment, poor impulse control, and a general tendency to take the easy way out. And again, this is a difficult process. Offering a risk-free escape route would set the whole system up for failure. It would be unjust, and a huge waste.

On top of that, the system would have to resuscitate each case one by one as people dropped out of the programs. DA’s offices would never be able to close a case, really. It would only increase their uncertainty and their workload. What possible incentive would they have to recommend our clients for treatment in such a situation? Time to be realistic, people.

So screw the naysayers. When we were narcotics prosecutors, we liked it. Now that we’re on the side of the angels, we love it. It makes a difference. It works. Keep both the carrot and the stick, if you want it to keep working. And if you want less cherry-picking, cough up more taxes so there are enough spots for all the good candidates, and then cough up some more to pay for the long shots.

In the meantime, let’s keep working to make it work.