South Carolina Criminal Defense Blog

The FBI's yearly report on crime data was released this week, and shows that a record number of Americans were arrested for marijuana possession in 2007:

872,721 Americans were arrested for marijuana in 2007, and of those arrests, 89% or 775,138 were arrests for simple possession - not buying, selling, trafficking, or manufacture (growing) . . . This represents an increase in marijuana arrests of 5.2% from the previous year and the fifth straight year marijuana arrests have increased from the previous year. Now a marijuana smoker is arrested at the rate of 1 every 37 seconds and almost 100 marijuana arrests per hour.

In comparison, Grits points out that "597,447 were for violent crimes, and 1,610,088 were for property crimes. That means just 15.54% of arrests were for violent crimes or property offenses." Dallas criminal defense lawyer Robert Guest takes this a step further, finding that the clearance numbers (crimes solved) for 2007 were:

Murder 60%

Rape- 40%

Robbery- 25%

When marijuana is legal the police can work on the 40% of annual uncleared murders. We owe it to the victims of real crime to quit wasting law enforcement resources on marijuana consumers.

What do you want your police solving and/or preventing? Pot smoking, or violent/property crime?

South Carolina had a total of 213,355 arrests, of which 10,681 were arrests for violent crimes, 302 were arrests for murder, and 30,679 were arrests for drug crimes

Just days before the FBI released their statistics showing that over 872,000 Americans were arrested in 2007 for marijuana, our esteemed Drug Czar stated on C-Span that "we did not arrest 800,000 marijuana users," and went on to explain that "we arrest people because they are usually involved with things like violent offenses . . ."

Right around 1:38 on the video:

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Posted In: Prison Nation , War on drugs

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I love this story from last year, where a Michigan police officer took some pot he had confiscated, baked brownies, ate them with his wife, and then called 911 to report an overdose. Please note that it is impossible to overdose on marijuana:

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CNN reports on the use of Sequoia National Forest by Mexican drug cartels to grow marijuana plants, and provide an interview with our fearless drug czar on scene. Apparently the cartels are using illegal immigrants to run the growing operations, in out of the way areas of the national forest.

As Dallas Criminal Defense Lawyer Robert Guest and the NORML Blog point out, this is a disgusting example of government propaganda, hitting two panic buttons at once - 1) large quantities of that deadly marijuana being grown 2) by illegal immigrants!

If marijuana was legal, the drug cartels would not have immigrants parked in our national forests growing the stuff - as Robert Guest says, "last time I checked Mexican drug cartels were not using illegal immigrants to grow tobacco, or run moonshine stills. If you are really want to end these drug cartel pot farms in national parks, legalize pot."

The inane prohibition propaganda continues in the war on (people) drugs, with the nation's drug czar claiming that marijuana is a deadly addictive substance, and laying blame on Hollywood for glamorizing pot. The facts are there for everyone to see, but most people will continue to allow the government to feed these lies to them, without researching it themselves.

Is it possible that most people would sign up to ban anything, if it was described the way the government describes pot? Robert Guest points us to a video that illustrates how easy it is to get people to sign on when fear-based propaganda is used as a motivator:

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ABC news reported tonight on Rachel Hoffman, a Florida girl who was murdered after being forced to work as an informant for Tallahassee police following her arrests for POT.

After being caught twice with a "baggie" of marijuana, 23-year old Rachel Hoffman was reportedly told by police in Tallahassee, Florida that she would go to prison for four years unless she became an undercover informant. The young woman, a recent graduate of Florida State University, was murdered during a botched sting operation two months ago.

The Tallahassee police chief said:

Rachel was suspected of selling drugs and she was rightly treated as a criminal. "That's my job as a police chief to find these criminals in our community and take them off the street, to make the proper arrests," Jones told 20/20.

This is why, 9 times out of 10, I advise my clients not to work with the Horry County DEU (drug enforcement unit) or Horry County police. Any time they make a drug bust, DEU will go to the jail and interview the person before they have a chance to speak with a lawyer. They will tell them they are going to prison if they don't cooperate, but they can help themselves by helping the cops. If they are willing, they are debriefed and tell the narcs who they know and who they can help bust, and if they know the right people the narcs get them out of jail and send them out wearing a wire to make more busts.

Sometimes this is a good deal, but more often than not your case is going to turn out the same whether you help them or not. Sometimes you come out worse, because now you are under their thumb and if you don't stop using or selling they will bust you again. And again. This is why no-one should agree to work with the narcs or even speak to them until they have consulted with an attorney about their situation.

And then, sometimes you end up dead. I once represented a person who was accused of chasing down an informant after a drug deal gone bad, and then emptying his gun into her head. When my clients ask if it is a good idea to work with the narcs, I tell them this story before they make their decision. The narcs insist that they are just down the street and will protect them, but they know that it is not possible to truly protect their informants.

I am always amazed by Horry County police officers who insist that they will not allow my 18 year old clients with no prior record, charged with simple possession of a joint, into PTI or give them a conditional discharge unless my client "gives them someone else." My answer is always no - and every one of those cases results in a dismissal, conditional discharge, or pre-trial diversion anyway, because that is the right outcome.

Besides the danger of violence, there is the danger of continued drug use period. I have clients that I watch struggle with staying clean, and I know that if they were to work for the narcs they cannot stay clean - if they are hanging around drug dealers and drug users, they will use drugs because they cannot help it. The narcs know this, but will use them up and throw them away so that they can make more busts.

Light needs to be shed on the tools that law enforcement uses in the war on (people) drugs. When they think informant, most people have a picture from the movies of a hardened drug dealer, toting a pistol and wearing the scars of his violent life, that works with law enforcement for pay or to get a deal on his charges. When they know the reality, that often it is the college student or the young person no different than their own children that is being placed in harm's way, maybe people will see this aspect of the war on drugs differently.

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"How to hide your weed" was the title of an article printed in the Dallas Observer last year, reproduced here, about former East Texas cop Barry Cooper. Cooper spent eight years as a narcotics officer in Texas, and now is making his living promoting his "never get busted" dvd's that teach users tips and tricks to avoid drug arrests. Cooper's dvd's go beyond the Just Cause Law Collective's advice on handling police encounters, and delves into topics such as where to hide your stash, how to grow pot without getting caught, and how to spot undercover officers and informants.

Cooper's dvd's have been fairly controversial. As you can imagine, the law enforcement community is not pleased with him and, at the same time, he is not completely accepted by those in favor of legalization because, although he has a great message, there is not much doubt he is in it for the profit.

On his website, he answers the question, "am I teaching people how to break the law?:"

No. It is clear the law is already being broken. 18 million Americans smoke marijuana daily and 93 million Americans admit to using marijuana at least once in their life. Barry is teaching how to keep from going to jail for an unjustified law that is already being broken daily by millions of non-violent citizens.

The inevitable controversy that comes from his existence provides a platform to speak out against the failed war on drugs. Speaking out against the war on drugs, in turn, gives him more press to sell more of his dvd's, but despite this it is a powerful message that he is able to carry:

Barry now admits during his tour of duty in the war on drugs his conscience often bothered him while seeing everyday, hard working, non-violent citizens torn from their children and spouses and placed in jail during a raid or traffic stop.

Barry explains, "I knew what I was doing was wrong but my need for fame, adrenaline and peer acceptance overrode my good conscience." Barry now realizes this is a war on people not a war on drugs. He explains "This war on people is a failed policy. We have more prisoners of this war in jail then ever before yet even the DEA admits we have more potent drugs and a larger supply of drugs available than ever before."

Cooper's dvd's have received positive and negative feedback from the blawgosphere - Windypundit likes them, Jon Katz has some issues with them and instead recommends Flex Your Rights' Busted video, which is free and may be more reliable from a legal standpoint.

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I went to the South Carolina Association of Criminal Defense Lawyers Blues, Bar-B-Q and Bar CLE in Greenwood, S.C. last Friday, and had a good time. One way I've found to stay excited about criminal defense and to stay current on what everyone else is doing in the field is to attend as many SCACDL and NACDL conferences as I can find time for. It is one way to re-charge and be reminded of why we do what we do.

The Greenwood CLE is always fun, coinciding with a blues and bar-b-q festival. This year I skipped the bands and the bar-b-q, but had a good time nonetheless, spent some time with old friends and learned a thing or two at the conference.

William H. Buckman traveled from New Jersey to give a presentation on methods of proving racial profiling in interstate cases, a topic that needs to be given more attention in the South where Jim Crow is alive and well on our interstates. I took a look at Mr. Buckman's website, where he has shared various materials on racial profiling challenges, and it looks like an excellent resource.

The Fourth Amendment is useless as a tool for specifically challenging racial profiling, but Buckman's suggestion is to make a threshold prima facie showing of racial disparity under the Fourteenth Amendment's Equal Protection Clause, sufficient to convince the Court to grant greater leeway in discovery. Certain documents can be obtained under the Freedom of Information Act (FOIA), which should allow for more complete discovery of agency records if a prima facie case of racial profiling/ an equal protection violation can be made.

Buckman has been successful in New Jersey in racial profiling litigation, exposing the methods used by the New Jersey State Police on the N.J. turnpike. In South Carolina, there are several "hotspots" where racial profiling occurs as well - I-85 through Spartanburg and Oconee County is one, and I-95 through Dillon County is another. It is time for more South Carolina defense lawyers to fight racial profiling on South Carolina's highways.

Attorneys don't often take drug trafficking cases to trial, usually because if the suppression hearing is lost there is no good defense at trial, and it is well known that S.C. judges are loathe to suppress any significant quantity of drugs. But if we do not challenge these cases consistently, nothing is going to change. Cops are going to continue what they are doing, and judges are going to continue slapping down the defense in the rare case that is challenged. We need to make some noise and bring more attention to what is being done to minorities on the roadside.

What's the problem, if drugs are being found and taken off the street? The problem is the thousands of innocent persons who are detained, harassed, and whose cars are tossed and sometimes dismantled, because they are Black or Hispanic. The problem is that lawyers and judges need to be enforcing the State and Federal Constitution, and not giving law enforcement license to break the law and lie in our courtrooms in order to obtain convictions or in order to fund their agencies.

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For the record, I don't believe that victimless DUI will ever be decriminalized. The best that we can hope for is that future legislation and penalty schemes will at some point be the result of truthful research and not hysteria-driven politics. However, I do believe that as the public becomes aware of the facts of the failed "war on drugs," minor drug offenses will eventually be decriminalized.

Some time ago, I believed that the only people who advocated for legalization of drugs were people who used drugs. That was an easy way to write off arguments against prohibition. But, as more time goes by it has become harder and harder to justify our country's failed drug policies. And it is undeniable that the loudest voices for the end of prohibition are not drug-users, but respected researchers, attorneys, policy makers, and even law enforcement.

In an op-ed to the LA Times Saturday, attorney David Fleming and Judge James P. Gray (author of Why Our Drug Laws Have Failed and What We Can Do About It), make the observation that only cops and crooks have benefited from the $2.5 trillion spent fighting drug trafficking. They identify six groups of people that benefit from the war on drugs:

1) drug cartels who are raking in billions of tax free dollars;
2) street gangs who sell illegal drugs;
3) cops and the huge agencies that have been developed to fight (and profit from) the war on drugs;
4) politicians who get elected by talking tough about drugs and crime;
5) the prison industry; and
6) terrorist groups that are funded by drug trafficking.

Do I think we should abruptly end prohibition of drugs in all quantities? Of course not. I do think we should begin by decriminalizing simple possession of drugs, regulating their use, and funneling more funds into education, prevention, and treatment. Persons who commit real crimes while under the influence of drugs will be prosecuted and punished.

Locking up a person for using drugs in the absence of any other crime does not serve any of the traditional functions of the criminal justice system. It is not an effective deterrent to the use of drugs, and especially not for those who are addicted; there is no effective rehabilitation in most prisons; retribution is a theory of punishment that only makes sense when there is a true victim; and incapacitation is a theory that is only applicable when potential future victims need to be protected from the defendant.

Prohibition is a failed policy that has not achieved results. Although the United States has some of the most punitive drug laws in the world, and we lock up our citizens at a rate higher than any other nation, a recent study by the World Health Organization (WHO) found in a survey of 17 countries that the U.S. had the highest rates of marijuana and cocaine use.

Fleming and Judge Gray suggest that we should look to other industrialized nations to see what does work, and follow their examples. "Ending drug prohibition, taxing and regulating drugs and spending tax dollars to treat addiction and dependency are the approaches that many of the world's industrialized countries are taking. Those approaches are ones that work."

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NORML reports that the U.S. Government (The United States of America, as represented by the Department of Health and Human Services) holds patents on various therapeutic cannabinoids found in pot.

And there you have it. The same federal government that steadfastly denies pot has any medicinal value also holds the medical patents on the plant’s various therapeutic cannabinoids. And they aren’t the only ones who do.

According to Wikipedia, the patent was awarded to the U.S. Government in 2003:

On October 7, 2003, a patent (#6,630,507) entitled: "Cannabinoids as Antioxidants and Neuroprotectants" was awarded to the United States Department of Health and Human Services, based on research done at the National Institute of Mental Health (NIMH), and the National Institute of Neurological Disorders and Stroke (NINDS). This patent claims that cannabinoids are "useful in the treatment and prophylaxis of wide variety of oxidation associated diseases, such as ischemic, age-related, inflammatory and autoimmune diseases. The cannabinoids are found to have particular application as neuroprotectants, for example in limiting neurological damage following ischemic insults, such as stroke and trauma, or in the treatment of neurodegenerative diseases, such as Alzheimer's disease, Parkinson's disease and HIV dementia."

Is this to be construed as an admission on the part of the federal government that pot does have medicinal value? A recognition of the inevitability of the legalization of medicinal marijuana? One commenter at the NORML Blog suggests that it is a new weapon in the war on drugs - if you can't prosecute them for possession or distribution, sue them for patent infringement!

Like Balko at the Agitator, I'm not sure what to make of this. It is certainly interesting, though.

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Yesterday a Joint Economic Committee meeting was held by the House and Senate, called by Virginia Senator Jim Webb, to discuss the efficacy of our country's failed drug laws. There was testimony by prosecutors and legal scholars that the current emphasis on incarceration rather than treatment has proven to be costly and ineffective.

Senator Webb and the witnesses at the hearing say that despite record numbers of arrests and incarceration of drug offenders, there has been no reduction in the availability and use of drugs. "Despite the number of people we have arrested, the illegal drug industry and the flow of drugs to our citizens remain undiminished," Webb said. Also at the hearing, Rep. Robert C. "Bobby" Scott "said prevention programs such as prenatal care, early-childhood education, summer jobs and access to college would prove more cost effective than spending $65 billion a year to lock people up, as the United States does today."

According to the article, Senator Webb acknowledges that the subject matter is "politically perilous," and advocating for less prison sentences will be seen as being "soft on crime." Senator Webb said that there is no pending legislation, he just wants to get the facts out. No republicans showed up for the meeting, and there was not much media coverage of the event, as noted at Sentencing Law and Policy.

That is the main barrier to fixing the drug laws - no politician wants to be seen as "soft on crime." But it is encouraging at least to see some who are talking about it, and putting it into the public's view. The beginning of making changes in the current policy is to educate the public on the facts of the "drug war," addiction, and the ineffectiveness of current policies.

When the will of the people is to stop incarcerating America, politicians will change the laws to reflect treatment and prevention rather than incarceration for non-violent offenders. There needs to be public debate, and more people in positions of authority like Senator Webb need to speak up if there is going to be any change in our collective will as a nation.

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Abuse of the forfeiture laws is rampant in South Carolina. Anytime a vehicle is stopped and any amount of drugs is found along with money, law enforcement takes the money. Sometimes they take money from passengers. Sometimes they take the vehicle. I have seen cases where a roach was found in the ashtray of a car, and the officers took all money out of the driver's pockets and informed him that it would be forfeited. Law enforcement took over $7000.00 from another client after finding a pipe in her room, and less than a quarter bag of weed in a roommates room which she was not charged with.

There are requirements that must be met under the forfeiture statute before law enforcement can take money from a person and attempt to keep it. Possession of a small amount of marijuana, proximity to a pipe or bong, or some shake on the floorboard do not qualify. If there is a valid claim for seizure of money or vehicles, law enforcement must file an action and have a judge review the case to determine whether there is probable cause for the forfeiture, and in many cases even this is not happening.

Officers will attempt to have the person consent to the forfeiture on the spot, and have the paperwork ready for them to sign. In other cases, they don't even ask for the consent and the civil suit is never filed. Law enforcement knows that these people do not know how to go about getting their money or vehicle back, and they know that if they are taking only a few thousand dollars, no attorney will take the case because the cost of the legal fees will likely exceed the amount of money that was taken.

In these situations, what is happening is armed robbery by law enforcement. Multiple officers carrying guns and displaying badges are taking what they want from people on the highway by force. The money may go to their department, although the people they are doing it to are not always sure, but that does not change the fact that it is armed robbery on the highway.

The ostensible purpose of the forfeiture laws was to use them as a weapon in the war on drugs. If you hit the drug traffickers financially then you are hurting them. This may be a valid purpose to confiscate money that is truly being used to finance drug transactions, but this is not how the forfeiture laws are being used in the situations I've described above. Law enforcement agencies depend on income from forfeitures, and there is often abuse in the way that the money is seized and the way that it is spent. Individual officers in some agencies are considered heroes by their brethren for the cash amounts that they bring in from asset seizures on the interstates.

I have told too many clients that there is nothing I can do to help them get their money back, because a few hundred or a few thousand dollars is not worth it to file suit. If I had the time I would file suit in every case where I know that law enforcement broke the law by seizing funds they were not entitled to, but I simply can't do it. What I can do is begin filing complaints in every case where this happens, no matter how small.

I believe we need greater oversight of how forfeiture laws are being implemented by various agencies. I believe the attorneys at the solicitor's offices who are handling these cases should take more initiative in ensuring that law enforcement is not breaking the law while harvesting funds from the highways. There should be a system in place to hold officers accountable for the seizures that somehow do not result in forfeiture suits being filed.

NPR has a four part story on seizure of drug money in other parts of the country that is worth reading:

Part one
Part two
Part three
Part four

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Posted In: Police Misconduct , War on drugs

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