Category Archives: Mandatory Minimum Sentences

The War on (Some) Drugs & The Prison Industrial Complex in Perspective

Good Magazine’s “Jailbirds”

The Marijuana Policy Project’s “The War on Drugs in 100 Seconds”

Hat Tip: Matt Kelly @ change.org “Criminal Justice”

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Ramos and Compean Should NOT be Pardoned

As the Bush era comes to a close, the list of last minute pardon requests are growing. Perhaps the loudest demand for pardon comes (mostly) from Conservatives who are angry that President Bush has not acted to pardon two Border Patrol Agents Ignacio Ramos and Jose Alonso Compean. Those who demand the pardon claim that the agents were railroaded by an “overzealous” U.S. Attorney for “just doing their jobs” when the agents fired 15 shots, one of which hit a fleeing “drug smuggling illegal immigrant” Aldrete-Davila in the buttocks. If you Google “Ramos and Compean” you will find an endless number of articles which make some variation of this argument.

If this were a case of two Border Patrol Agents “just doing their jobs” acting in self defense, then I too would be demanding a pardon for these men. Inconvenient facts which are left out of almost all of these articles point to exactly why Ramos and Compean should NOT be pardoned. A January 29, 2007 article written by Andrew McCarthy for The National Review (not what I would consider a left-leaning or open borders type publication) offers a compelling counterpoint challenging the heroic and mythical image being bandied about of the two Border Patrol Agents:

The preponderance of the evidence established that Aldrete-Davila was unarmed. Besides Compean and Ramos, there were several other agents on the scene. None of them believed Aldrete-Davila posed a threat to their safety; none, other than the two defendants drew their weapons; and Compean and Ramos neither took cover nor alerted their fellow agents to do so.

More to the point, Compean admitted to investigators early on that the smuggler had raised his hands, palms open, in an attempt to surrender. This jibed not only with Aldrete-Davila’s account but with that of another Border Patrol agent. Compean opted not to take surrender, not to place the smuggler under arrest so he could be prosecuted.

On that score, for those over-heatedly analogizing the border to a battlefield, it is worth noting that even under the law of war, quarter must be given when it is sought. Compean, to the contrary, tried to strike Aldrete-Davila with the butt of his shotgun. But it turns out the agent was as hapless as he was malevolent. In the assault, he succeeded only in losing his own balance. The smuggler, naturally, took off again, whereupon Compean unleashed an incompetent fuselage — missing Aldrete-Davila with all fourteen shots.

It was only after the surrender attempt that Ramos opened fire as the unarmed smuggler neared the border. Defending his decision to bring the case, U.S. attorney Sutton later explained: “Border Patrol training allows for the use of deadly force when an agent reasonably fears imminent bodily injury or death. An agent is not permitted to shoot an unarmed suspect who is running away.” The fact that Aldrete-Davila was a drug-dealer — something the agents may have suspected but had not yet confirmed at the time they were shooting at him — did not justify the responsive use of potentially deadly force under standard law-enforcement rules of engagement.

Even Ramos and Compean’s supporters acknowledge that the agents shot at a fleeing suspect rather than a suspect trying to cause injury or death. Do they really want to make every law enforcement officer in the country judge, jury, and executioner and grant the right to use lethal force against a fleeing supect*? After all, forcing law enforcement to obey the law makes their jobs “more difficult”!

McCarthy continues to perhaps the most damning part of Ramos and Compean’s actions – the cover-up:

Once Aldrete-Davila was down from Ramos’s shot to the backside, they decided, for a second time, not to grab him so he could face justice for his crimes. As they well knew, an arrest at that point — after 15 shots at a fleeing, unarmed man who had tried to surrender — would have shone a spotlight on their performance. So instead, they exacerbated the already shameful display.

Instead of arresting the wounded smuggler, they put their guns away and left him behind. But not before trying to conceal the improper discharge of their firearms. Compean picked up and hid his shell-casings rather than leaving the scene intact for investigators. Both agents filed false reports, failing to record the firing of their weapons though they were well aware of regulations requiring that they do so. Because the “heroes” put covering their tracks ahead of doing their duty, Aldrete-Davila was eventually able to limp off to a waiting car and escape into Mexico.

Whaaaat? But I thought this “drug smuggling illegal immigrant” was a threat to national security? If the agents’ actions were justified, why would they not arrest the suspect and why would they feel the need to cover-up their actions? Were they afraid that the “overzealous” Sutton had an axe to grind against the Border Patrol?

Toward the beginning of his article, McCarthy points out that Sutton had an impressive record of prosecuting coyotes and drug smugglers and supporting the efforts of the Border Patrol. There have even been other cases on Sutton’s watch where agents used lethal force which resulted in fatalities. Because these agents responded appropriately in these cases – using deadly force when there were legitimate threats to the lives of others on the part of the suspects, Sutton’s office did not pursue charges.

On January 17, 2007, Sutton published a press release on official U.S. Department of Justice Letterhead in an attempt to separate “Myth vs. Reality” regarding this case. Within this document contains perhaps the best argument for why the president should not pardon these men:

These agents were found guilty by a unanimous jury in a United States District Court after a trial that lasted more than two and a half weeks.

The two agents were represented by experienced and aggressive trial attorneys, both of whom vigorously challenged the Government’s evidence through cross examination.

Both agents told their stories from the witness stand and had full opportunities to explain their version of events and to offer their own evidence. The jury heard everything including the defendants’ claims of self defense. The problem for Agents Compean and Ramos is that the jury did not believe their stories because they were not true.

Being government agents, Ramos and Compean probably received a better legal defense than the average criminal defendant. They had their day in court and they lost. Their legal team appealed the convictions and they lost again. This is hardly the miscarriage of justice that the pro pardon people would have us believe; this is an example of the system actually working the way it’s supposed to!

Ramos and Compean’s supporters do have at least a couple of somewhat legitimate gripes though. One being the length of the sentences (11 and 12 years) and the other being use of testimony on the part of a criminal who has something to gain (in this case, Aldrete-Davila himself). But these complaints should not be directed at Sutton or the trial judge.

The blame for the length of the sentence belongs properly to the mandatory minimum sentencing law passed by congress which requires a ten year sentence for unlawful discharge of a firearm while committing a crime (this ten year sentence is in addition to whatever other crimes the defendant is convicted of). While I believe that the sentences are appropriate in this case, I am opposed to mandatory minimum sentencing laws on principle. Judges should have the discretion to decide the appropriate punishment not a one-size-fits-all penalty regardless of any unique circumstances in a unique event.

And allowing Aldrete-Dalvia to testify against Ramos and Compean with full immunity? This is standard operating procedure. Prosecutors use informants who have a motive to testify against defendants every day in this country. Why should we be surprised that Sutton would use Aldrete-Dalvia as his star witness? If this approach is appropriate for the average defendant then it is certainly appropriate when those sworn to serve and protect abuse the public’s trust.

But don’t expect Conservatives to start demanding a repeal of mandatory minimum sentencing laws nor expect them to consider criminal justice reform. To them this case is not about two rogue law enforcement agents but about immigration and drug policy. The facts do not matter because the guys with the badges are always the good guys and their judgment is better than due process of law.

Certainly there are many miscarriages of justice which could be rectified with a presidential pardon (*cough* *cough* Cory Maye *cough* *cough*) but the case of Ramos and Compean is not such a case…no matter where one stands on immigration and drug policy. Hopefully neither President Bush nor President-Elect Barack Obama will give in to the mindless demands of this misguided and vocal mob.

***CORRECTION***

Quincy pointed out that the president cannot pardon individuals who have been convicted of crimes in violation of state or local laws but only federal laws. Cory Maye was found guilty under Mississippi law, not federal law. My understanding has always been that the president could pardon anyone for committing any crime in the U.S.

A careful reading of Article II, Section 2 of the Constitution, however; seems to say otherwise:

[The president] shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

I also decided to do some additional research on the topic of presidential pardons to determine if the phrase “against the United States” applied to state and local law. HowStuffWorks? has a very informative article which explains how presidential pardons work. In chapter 5 “What a Pardon Does Not Do” I found my answer:

One limitation is that a pardon cannot be issued for a crime that has not yet been committed. Pardons also don’t affect civil cases, or state or local cases. Pardons are meant to dismiss sentences stemming from affronts to the United States through the breaking of laws.

Unfortunately, this means that Quincy is right: the president couldn’t pardon Cory Maye even if he wanted to.

* Think about it: if you surrendered to law enforcement and one of the officers try to hit you with the butt of a shotgun, do you think you might try to run away?

Sex Offender Insanity

I’ve written several times in the past about the manner in which America’s sex offender registry laws have led to insane, some might even say unjust, outcomes. There was the six-year old boy in Virginia who will go through the rest of his school career tagged as a sexual offender. The 15 year old Ohio teenager who was charged with distribution of child pornography for sending a nude picture of herself to her friends. Last week, I wrote about a 24 year old woman in Georgia who could lose her house because she was declared a sex offender for having oral sex with her boyfriend when she was a teenager. And, then, of course, there’s the case of Genarlow Wilson, who spent was sentenced to 10 years in prison for having oral sex with his girlfriend.

Well, the insanity continues.

Consider this story of a 16 year old who’s life is essentially ruined because he did something teenagers do every day:

When Ricky was 16, he went to a teen club and met a girl named Amanda, who said she was the same age. They hit it off and were eventually having sex. At the time Ricky thought it was a pretty normal high school romance.

Two years later, Ricky is a registered sex offender, and his life is destroyed.

Amanda turned out to be 13. Ricky was arrested, tried as an adult, and pleaded guilty to the charge of lascivious acts with a child, which is a class D felony in Iowa. It is not disputed that the sex was consensual, but intercourse with a 13-year-old is illegal in Iowa.

Ricky was sentenced to two years probation and 10 years on the Iowa online sex offender registry. Ricky and his family have since moved to Oklahoma, where he will remain on the state’s public registry for life.

Being labeled a sex offender has completely changed Ricky’s life, leading him to be kicked out of high school, thrown out of parks, taunted by neighbors, harassed by strangers, and unable to live within 2,000 feet of a school, day-care center or park. He is prohibited from going to the movies or mall with friends because it would require crossing state borders, which he cannot do without permission from his probation officer. One of Ricky’s neighbors called the cops on him, yelled and cursed at him, and videotaped him every time he stepped outside, Ricky said.

“It affects you in every way,” he said. “You’re scared to go out places. You’re on the Internet, so everybody sees your picture.”

His mother, Mary, said the entire family has felt the ramifications of Ricky being labeled a sex offender. His younger brother has been ridiculed at school and cannot have friends over to the house; his stepfather has been harassed; the parents’ marriage has been under tremendous pressure; and strangers used to show up at their door to badger the family. One neighbor came to the house and told Mary he wasn’t going to leave them alone until they took their “child rapist” away, so they moved, she said.

Ricky’s family should probably be thankful they don’t live in Florida, though, because they’d probably be living under a bridge:

MIAMI, Florida (CNN) — The sparkling blue waters off Miami’s Julia Tuttle Causeway look as if they were taken from a postcard. But the causeway’s only inhabitants see little paradise in their surroundings.

Five men — all registered sex offenders convicted of abusing children — live along the causeway because there is a housing shortage for Miami’s least welcome residents.

“I got nowhere I can go!” says sex offender Rene Matamoros, who lives with his dog on the shore where Biscayne Bay meets the causeway.

The Florida Department of Corrections says there are fewer and fewer places in Miami-Dade County where sex offenders can live because the county has some of the strongest restrictions against this kind of criminal in the country.

Florida’s solution: house the convicted felons under a bridge that forms one part of the causeway.

The Julia Tuttle Causeway, which links Miami to Miami Beach, offers no running water, no electricity and little protection from nasty weather. It’s not an ideal solution, Department of Corrections Officials told CNN, but at least the state knows where the sex offenders are.

Now, it’s likely the case that the men living under the causeway are dangerous offenders, but where’s the logic in a law that is so draconian in restricting where they live that it encourages them to drop out of the system so that nobody will know where they are ? And where’s the logic in extending the sex offender registry system to offenses that aren’t really offenses at all, but rather just teenagers being teenagers ?

Steve Verdon makes this point:

Making them register as sex offenders and destroying their lives is simply stupid. And even for actual sex offenders releasing them then passing laws that make it impossible to live anywhere in society is just mind boggling stupid. If they are still such a danger to society, then lock them the Hell up. Don’t release convicted criminals who are so highly likely to re-offend back into society and set up a monitoring system that is so harsh it actually encourages them to avoid registering as a sex offender.

While at the same time ruining the lives of essentially innocent people.

Stevens Convicted

40 years of corruption down the drain. Might as well have joined the f’in Peace Corps:

Alaska Sen. Ted Stevens was convicted of seven corruption charges Monday in a trial that threatened to end the 40-year career of Alaska’s political patriarch in disgrace.

The verdict, coming barely a week before Election Day, increased Stevens’ difficulty in winning what already was a difficult race against Democratic challenger Mark Begich. Democrats hope to seize the once reliably Republican seat as part of their bid for a filibuster-proof majority in the Senate.

Stevens, 84, was convicted of all the felony charges he faced of lying about free home renovations and other gifts from a wealthy oil contractor. Jurors began deliberating last week.

The senator showed no emotion as the jury foreman said “guilty” seven times. After the verdicts, Stevens sat in his chair and stared at the ceiling as attorney Brendan Sullivan put his arm around him.

Stevens faces up to five years in prison on each count when he is sentenced, but under federal guidelines he is likely to receive much less prison time, if any. The judge originally scheduled sentencing for Jan. 26 but then changed his mind and did not immediately set a date.

What federal guidelines allow him to be convicted of multiple felonies and not face prison time? Is that the “you get billions in earmarks for my state, I’ll scratch your back” sort of guideline?

Personal Attack Ad…Against Myself!

Have you ever wondered what it would be like to be on the receiving end of a personal attack ad? I have. During the 2006 campaign, I thought it would be fun to write my own personal attack ad…against myself! Like many attack ads, everything I wrote about myself was (is) technically true but lacked context (the full context of each charge can be found by following the links).

I found the exercise to be very cathartic and enjoyable. I highly recommend you try it sometime! Feel free to write your own personal attack ad against yourself or write your own against me in the comments section of this post.

Now, cue the unflattering grainy black and white video with dreary music and enjoy my personal attack ad:

Who is Stephen Littau and why can’t we trust him?

For starters, he often advocates ending the war on drugs, suspending drug raids on suspected dealers, and repealing mandatory minimum sentencing laws for drug offenders. He has even gone as far as to defend a man who shot and killed a police officer who was simply serving a lawful search warrant.

But that’s not all…

Stephen Littau once wrote “Go ahead and call me an infidel, I will readily embrace this label” and that “an end of faith is way overdue.” Do we really want to put our trust in such a Godless heathen?

Not if you want to defend marriage, the flag, and traditional family values. Stephen Littau opposed the Defense of Marriage Amendment and the Flag Desecration Amendment. He also wants to take God off our currency, out of the Pledge of Allegiance, and remove religious monuments such as the Ten Commandments from government property using the tired old “wall of church and state” argument.

Stephen Littau is so morally depraved that he considers selfishness a “virtue” and wants to eliminate social welfare and entitlement programs leaving Americans to fend for themselves. Stephen Littau wants us to believe that such selfish attitudes are actually compassionate by allowing people to suffer from their poor choices.

Let’s be sure not to suffer from this bad choice. This November, send Stephen Littau a clear message:

Yes to the war on drugs!
Yes to religion in government!
Yes to defending marriage, the flag, and the Ten Commandments!
Yes to a compassionate government!
And No to the secular philosophy and dangerous ideas of Stephen Littau!

Government Reefer Madness Update: Lynch Receives 100 Year Sentence

This is an update to a post I wrote in late June. Maybe its time to propose some sort of “fully informed jury” legislation and demand a return to federalism?

How Saudi Justice Is Sometimes More Merciful Than American Justice

In the field of professional executioners, the Saudi executioner has one of the more brutal reputations since he uses a sword to cut off people’s heads. This is not the clean antiseptic push-button executions of the U.S. but one where the executioner has to physically exert himself, gore splatters and the smell of blood fills the air in front of a howling mob. One can hardly imagine a more barbaric spectacle, and would imagine that the executioners must be brutal men who love killing.

‘Before an execution I give the victim’s family a chance too.’
‘I ask them if they will forgive. Sometimes this happens at literally the last minute. My thoughts and prayers are concentrated on the fact that they will forgive the criminal. I hope that they forgive him and feel joy when they do,’ he adds earnestly. Rezkallah will take it upon himself to visit the victim’s family in order to obtain a stay of execution.

‘If I get the chance, and most of the time I do, I go and ask the family to give the criminal another chance. It has worked many times and the family has forgiven the criminal at the last minute.’ He smiles for a moment, recalling one such occasion.

Following a successful stay of execution, the crowd, somewhat surprisingly given the fact that they’ve turned up to witness a brutal death, breaks into rejoicing.

‘There is clapping and cheering,’ says Rezkallah. ‘The scenes of happiness are indescribable.’

In America, this quality of mercy, permitting the victim or victim’s family to forgive transgressions is wholly absent. Horror stories include the lifetime registration as a sex-offender of the man who was convicted of the statutory rape of the woman who is now his wife, and the man facing attempted murder charges despite his victim’s adamant testimony that the shooting was an accident.

When a family does beg for clemency, the process is far more involved. Rather than the stay of execution automatically being granted, the family must go before a governor and or a board of pardons and plead for the criminal’s life. Their wishes are irrelevant. The state alone determines what is justice. The victim’s wishes need not be respected, and are often ignored.

Yes, the Saudi legal code, with capital crimes like whitchcraft, is barbaric. But it is shameful that the U.S. legal code is less accommodating of the victims’ pleas for mercy.

I am an anarcho-capitalist living just west of Boston Massachussetts. I am married, have two children, and am trying to start my own computer consulting company.

Pew Report: 1 in 100 U.S. Adults Behind Bars in 2008

A Pew report found that 1 in every 100 U.S. adults is now behind bars. The breakdown along racial and ethnic lines is even more disturbing. In the 18 and over age demographic for males, Pew found that 1 in 106 white males are behind bars compared to 1 in 36 for Hispanic males, and 1 in 15 for black males. The most incarcerated group of all is black males from the ages of 20 to 34 with 1 in 9 in this group behind bars.

Pew also found a large gender gap in incarcerations; 1 in 54 all males (18 and over) are behind bars compared to 1 in 265 of all women ages 35 to 69 (“all women 18 and over” must have been too small of a group to measure). The least incarcerated group of all is white women ages 35 to 39 with only 1 in 355.

One would think that based on an adult population of 230 million that with 1 in 100 in jail or prison that our country must be full of murderers, rapists, and thieves. How do we manage to leave our homes without being raped, robbed, or murdered?

Maybe the reason we have so many Americans behind bars has to do with something else: too many “crimes” which do not violate the rights of a non-consenting other. Maybe it is our laws that are the problem.

Gene Healy of the Cato Institute made the following observation in an article he wrote in 2005 called “Criminalization out of Control.”

Because Congress criminalizes unreflectively, the federal criminal code has become vast and incomprehensible. A research team led by professor John Baker of Louisiana State Law School recently estimated that there are more than 4,000 separate federal criminal offenses. That number, inexact as it is, vastly understates the breadth of the criminal law, because the federal criminal code, in turn, incorporates by reference tens of thousands of regulatory violations never voted on by Congress. [Emphasis mine]

And this burgeoning culture of criminalization reverberates down the law enforcement ladder as local police increasingly use handcuffs and jail to deal with situations that clearly don’t warrant it. In September, at a Washington, D.C., bus stop, a Metro transit officer forced a pregnant woman to the ground and handcuffed her for talking too loudly on her cell phone. In April, in St. Petersburg, Fla., police were called into an elementary school to handcuff an unruly 5-year-old girl.

One of our most destructive overcriminalization binges occurred during the “Just Say No” era, when Congress embraced mandatory minimum sentencing as a way to deal with the use of illicit drugs. Making prison the solution to drug abuse has had staggering social costs.

This Pew study bears this out as the study states:

In short, experts say, expanding prisons will accomplish less and cost more than it has in the past.

[…]

[W]ith one in 100 adults looking out at this country from behind an expensive wall of bars, the potential of new approaches cannot be ignored.

There is, however, some good news that perhaps some of these new approaches are not being ignored. The report also found that states are learning that incarceration is not always the best answer. Some states are taking another look at their mandatory minimum sentencing statutes and have begun to prioritize the limited space based on violent offenses vs. nonviolent offenses. More states are also giving “drug courts” and treatment programs for nonviolent drug offenders another look as an alternative to incarceration. This could be a big step in the right direction given that drug offenses account for 53.5% of the national prison population.

Still, there is much work to be done in reforming our broken criminal justice system due in large part to the war on (some) drugs and mandatory minimum sentencing.

Hat Tip: Cato Daily Dispatch for February 29, 2008

Two Victories on the Mandatory Minimums Front

WASHINGTON – The Supreme Court on Monday said judges may impose shorter prison terms for crack cocaine crimes, enhancing judicial discretion to reduce the disparity between sentences for crack and cocaine powder.

By a 7-2 vote, the court said that a 15-year sentence given to Derrick Kimbrough, a veteran of the 1991 war with Iraq, was acceptable, even though federal sentencing guidelines called for Kimbrough to receive 19 to 22 years.

In a separate sentencing case that did not involve crack cocaine, the court also ruled in favor of judicial discretion to impose more lenient sentences than federal guidelines recommend.

The challenges to criminal sentences center on a judge’s discretion to impose a shorter sentence than is called for in guidelines established by the U.S. Sentencing Commission, at Congress’ direction. The guidelines were adopted in the mid-1980s to help produce uniform punishments for similar crimes.

The cases are the result of a decision three years ago in which the justices ruled that judges need not strictly follow the sentencing guidelines. Instead, appellate courts would review sentences for reasonableness, although the court has since struggled to define what it meant by that term.

Kimbrough’s case did not present the justices with the ultimate question of the fairness of the disparity in crack and powder cocaine sentences.

In a time when 5-4 Supreme Court rulings are the norm, this 7-2 ruling is a strong signal that the courts should have more discretion when sentencing individuals. Some may call this ruling “judicial activism” and one could probably make that case. But assuming that this is judicial activism, I would argue that the courts are constitutionally held to an even higher duty to make sure the punishment fits the crime; to do justice. When the prescribed punishment violates common sense, then judicial activism is completely appropriate (see my posts about Genarlow Wilson here, here, and here). We cannot reasonably expect the courts to be reasonable if state and federal laws tie the hands of the judges with unreasonable mandatory minimum sentencing laws.

The article continues:

Congress wrote the harsher treatment for crack into a law that sets a mandatory minimum five-year prison sentence for trafficking in 5 grams of crack cocaine or 100 times as much cocaine powder. The law also sets maximum terms.

Seventy percent of crack defendants are given the mandatory prison terms.

Kimbrough is among the remaining 30 percent who, under the guidelines, get even more time in prison because they are convicted of trafficking in more than the amount of crack that triggers the minimum sentences.

Justice Ruth Bader Ginsburg, writing for the majority, said, “A reviewing court could not rationally conclude that it was an abuse of discretion” to cut four years off the guidelines-recommended sentence for Kimbrough.

Justices Samuel Alito and Clarence Thomas dissented.

The Sentencing Commission recently changed the guidelines to reduce the disparity in prison time for the two crimes. New guidelines took effect Nov. 1 after Congress took no action to overturn the change.
The commission is scheduled to vote Tuesday afternoon on the retroactive application of the crack cocaine guideline amendment that went into effect on Nov. 1. The commission has estimated 19,500 inmates could apply for sentence reductions under the proposal.

I certainly hope these 19,500 inmates do just that; these 19,500 spots would serve us all better if they were taken by violent criminals who are a genuine threat to the life, liberty, and property of us all.

The Supreme Court also made a ruling on another mandatory minimums case:

In the other case, the court, also by a 7-2 vote, upheld a sentence of probation for Brian Gall for his role in a conspiracy to sell 10,000 pills of ecstasy. U.S. District Judge Robert Pratt of Des Moines, Iowa, determined that Gall had voluntarily quit selling drugs several years before he was implicated, stopped drinking, graduated from college and built a successful business. The guidelines said Gall should have been sent to prison for 30 to 37 months.

The sentence was reasonable, Justice John Paul Stevens said in his majority opinion. Alito and Thomas again dissented.

The cases are Kimbrough v. U.S., 06-6330, and Gall v. U.S., 06-7949.

Another case of judicial activism? The court was once again correct to choose probation over prison. Mr. Gall had already taken steps to be a productive, law abiding citizen. What good would come of putting an already rehabilitated individual into the prison system? These are only questions which can be answered by a judge or a jury; not an arbitrary one-size-fits-all mandatory minimum sentencing law.

The Broader Implications of the Genarlow Wilson Verdict

Last week’s 5-4 Georgia Supreme Court ruling in the Genarlow Wilson case is not only great news for Genarlow Wilson but also great news for others who have found themselves in a similar situation. With the ruling being as close as it was it’s clear that the court could have easily ruled the other way.

How is it that 4 of the justices arrived at the conclusion that Genarlow Wilson’s punishment was not cruel and unusual punishment? The dissent written by Justice George Carley explains:

(dissent pages 14-16)

[T]oday’s decision is rare because of its unprecedented disregard for the General Assembly’s constitutional authority to make express provision against the giving of any retroactive effect to its legislative lessening of the punishment for criminal offenses. If, notwithstanding a provision such as § 30 (c), the judiciary is permitted to determine that a formerly authorized harsher sentence nevertheless constitutes cruel and unusual punishment, then it necessarily follows that there are no circumstances in which the General Assembly can insulate its subsequent reduction of a criminal sentence from possible retroactive application by courts.

It seems that the main complaint by the court’s minority is that the court usurped the state’s legislative authority; perhaps the minority has a point. Justice Carley cites language from the 2006 bill which plainly states that individuals charged prior to the bill’s effective date of July 1, 2006 would be punished according to the old law (this would include Genarlow Wilson).

Regardless of the legislative intent, this seems unjust. Why should an individual who was charged the day before the law’s effective date be subject to a 10 year sentence while another individual commits the same exact crime one day later be sentenced to perhaps a year? Cruel and unusual punishment is prohibited by both the Georgia State Constitution and the U.S. Constitution. At some point or another, these justices each undertook an oath to defend these constitutions. While the minority can make the case that they upheld their oath by recognizing the separation of powers, the majority could make the argument that they upheld their oaths by their interpretation of what constitutes cruel and unusual punishment despite the intentions of the Georgia Assembly.

As a lay person, I cannot say which side is technically correct; one side is likely in error. But in cases where there is a grey area in the law, judges should err on the side of common sense, liberty, and justice. This is the side the court’s majority came down on.

Wilson is certainly not the only defendant convicted of aggravated child molestation who benefits at the expense of today’s judicial reduction of the General Assembly’s power to legislate. At present, any and all defendants who were ever convicted of aggravated child molestation and sentenced for a felony under circumstances similar to Wilson are, as a matter of law, entitled to be completely discharged from lawful custody even though the General Assembly expressly provided that their status as convicted felons would not be affected by the very statute upon which the majority relies to free them. […] Moreover, nothing in today’s decision limits its application to cases involving minors who engage in voluntary sexual acts. Any defendant who was ever convicted in this state for the commission of any crime for which the sentence was subsequently reduced is now entitled to claim that his harsher sentence, though authorized under the statute in effect at the time it was imposed, has since become cruel and unusual and that, as a consequence, he is not only entitled to the benefit of the more lenient sentence, but should be released entirely from incarceration. […]Accordingly, as a result of this “rare case,” the superior courts should be prepared for a flood of habeas corpus petitions filed by prisoners who seek to be freed from imprisonment because of a subsequent reduction in the applicable sentences for the crimes for which they were convicted.

Others who have been convicted and punished in circumstances similar to that of Genarlow Wilson will seek to overturn their convictions as well? I should hope so! Maybe the minority should think about the overall intent of both the old and the new laws: to protect children from child molesters. How is imprisoning teenagers who engage in sexual acts with other teenagers protecting children? What would be the benefit of registering Genarlow Wilson as a sex offender? As a parent of three small children, I want only the real predators to be registered. I don’t want to look at a neighborhood sex offender map on the internet and wonder which predators are real and which ones made typical bad choices when they were teenagers.

The effect of registering sex offenders (legitimately or not) has other negative consequences as well. Registered sex offenders have difficulty finding employment, housing, and many other freedoms we take for granted. What happens to an individual who cannot find work or a home? The likelihood is s/he engages in other dangerous criminal activity for sustenance such as burglary, drug trafficking, and/or prostitution (the latter 2 should not be crimes and have similar consequences which lead to real crimes).

This isn’t to say that I want to make life easy for genuine sex offenders – far from it. The answer is not the one-size-fits-all mandatory minimum sentencing laws but to punish offenders of each case based on the facts of each case using common sense. If a judge or jury finds that an individual is one who will likely offend again, then there should be no discussions of registration but incarceration. It should be extremely difficult if not impossible for a child molester to ever re-enter society.

Hopefully, this case surrounding Genarlow Wilson will start a discussion around the country about mandatory minimum sentences and the way we have chosen to deal with sex offenders. Its time to take a step back and examine our emotional response to these issues and search for more reasonable policies.

Bill O’Reilly’s Ignorance on Display

This 5 minute video clip from Bill O’Reilly’s The O’Reilly Factor is a little old but I just discovered it at the Reason.tv website. In this clip, O’Reilly confronts Reason Magazine’s Jacob Sullum who just wrote the book Saying Yes: In Defense of Drug Use. While don’t agree that recreational drug use is a positive thing, Sullum makes other very good points regarding the problems associated with the war on (some) drugs (I also suspect Sullum chose this provocative title to bait the media into bringing attention to his book. Good move!)

Anyone else notice how Mr. O’Reilly cut off Sullum when he had a valid point or would simply dismiss it as “spin”? I would so love to see O’Reilly debate Sullum or someone else who has a firm grasp of the issue in an Oxford style debate (such as NPR does in its Intelligence Squared program). In a format where O’Reilly cannot shout down, cut the mic, or interrupt his opponent, he would be torn to shreds by someone like Sullum (and thus very entertaining to observe).

I was also very annoyed when he described Mr. Sullum as “libertine” even as Mr. Sullum explained that liberty and responsibility for one’s own actions are inseparable. It seemed to me that they actually agreed that individuals should be free to do as they wish, provided that they do not infringe on the life, liberty, or property of others (though I think this was lost on O’Reilly).

Would you like some “no spin” facts regarding the war on (some) drugs Mr. O’Reilly? Here’s some statistics from the Federal Bureau of Prisons on the makeup of the prison population. You tell me if drug prohibition has not contributed to our problem of overcrowded prisons.

Types of Offenses

Drug Offenses: 98,675 (53.5 %)

Weapons, Explosives, Arson: 26,676 (14.5 %)

Immigration: 19,589 (10.6 %)

Robbery: 9,405 (5.1 %)

Burglary, Larceny, Property Offenses: 6,836 (3.7 %)

Extortion, Fraud, Bribery: 8,201 (4.5 %)

Homicide, Aggravated Assault, and Kidnapping Offenses: 5,580 (3.0 %)

Miscellaneous: 2,082 (1.1 %)

Sex Offenses: 4,835 (2.6 %)

Banking and Insurance, Counterfeit, Embezzlement: 987 (0.5 %)

Courts or Corrections: 753 (0.4 %)

Continuing Criminal Enterprise: 572 (0.3 %)

National Security: 99 (0.1 %)

A Small Victory

If anyone has any doubts about whether or not the war on (some) drugs and mandatory minimum sentencing guidelines turn otherwise law abiding citizens into criminals, look no further than the injustice Richard Paey suffered in the State of Florida. To make a long story short: Paey received serious injuries in a car accident, his doctor prescribed pain medication, Paey moves to Florida, Paey could not find a doctor who would renew his prescriptions, Paey forges prescriptions to relieve his pain, Paey is arrested, convicted, and receives a mandatory minimum sentence of 25 ½ years.

Here’s the real kicker:

Everyone, including judges, acknowledged the traffic accident victim was using the pills for debilitating pain. And since his incarceration, prison doctors have hooked him up to a morphine drip, which delivers more narcotics in about two days than he was convicted of trafficking.

That’s right: the mandatory minimum sentencing guidelines for “drug trafficking” tied the judges’ hands. A strict interpretation of the Florida law meant this wheelchair bound “criminal” required this harsh sentence. The only hope for Richard Paey would be to receive a commuted sentence or a pardon from the governor; a very unlikely scenario.

http://media.miamiherald.com/smedia/2007/09/20/21/849-PAEYStory.embedded.prod_affiliate.56.jpg

But that unlikely scenario became a reality today when Florida Governor Charlie Crist gave Richard Paey a full pardon—a development which went beyond his own legal team’s request to commute his sentence. Richard Paey was wheeled out of prison by a prison guard a free man with all of his civil rights restored!

The state’s parole commission recommended denying clemency for Paey, who was only seeking to have his prison sentence commuted. But after his lawyer, wife and four children wept and pleaded for Paey’s release, Crist and the Cabinet went further than Paey expected by unanimously agreeing to grant him a full pardon — meaning he’ll have the right to vote and carry firearms.

They also acknowledged that the state’s drug laws might be unfair.

”This is not a pleasant case,” said Attorney General Bill McCollum, who noted that he supported mandatory-minimum sentences when he was in Congress. “Our laws are very much to blame.”

The state’s drug laws might be unfair? Gee, do ya think! Hopefully the AG’s realization of these unfair laws will extend to Florida legislators and legislators throughout the country. No fair human being could suggest that Richard Paey should serve hard time for merely relieving his pain.

But so are the prosecutors in Pasco County [to blame], said Paey’s wife, Linda Paey, who said she couldn’t understand why they zealously pursued her husband through three trials despite the widespread acknowledgement that he was a pain victim and not a drug dealer.

”I’ve changed. I no longer trust the police. I don’t trust the justice system,” she said. “Only the media got our case right.”

Crist, too, took a swipe at the prosecutors, saying the war on drugs itself isn’t just to blame in cases such as this. ”If they’re prosecuted appropriately, then justice will be done,” he said. “Obviously, this case cries out for a review of that process.”

Crist may be right in blaming the prosecutors for their overzealousness. After all, where was this overzealousness whenever former Florida Governor Jeb Bush’s daughter was busted for a similar crime? Noelle Bush received nowhere near the punishment as did Richard Paey (Oh, I forgot; politicians and their families play by different rules). But prosecutorial overzealousness not withstanding; these mandatory minimum sentencing laws are subject to interpretation both by judges and prosecutors. One prosecutor might decide to file the mandatory minimum charges while another might decide not to. If the law is a bad law, there will be prosecutors who will bring the charges and judges who will rule based on their understanding of the law. Crist can further help right this wrong by pushing the Florida legislature to repeal these draconian laws.

While we may have to contend with this mandatory minimums madness for at least a little while longer, at least for one man the nightmare is over…hopefully.

Hat tip: Radley Balko

Genarlow Wilson Prosecutor Distributes Child Porn

ATLANTA (AP) — District Attorney David McDade has handed out some 35 copies of a video of teenagers having sex at a party.

McDade says Georgia’s open-records law leaves him no choice but to release the footage because it was evidence in one of the state’s most turbulent cases — that of Genarlow Wilson, a young man serving 10 years in prison for having oral sex with a girl when they were teenagers.
McDade’s actions have opened him up to accusations that he is vindictively misusing his authority to keep Wilson behind bars — and worse, distributing child pornography.

[…]

It shows Wilson, then 17, receiving oral sex from a 15-year-old girl and having intercourse with another 17-year-old girl. It was shot at a 2003 New Year’s Eve Party at a hotel room by another partygoer.
Earlier this week, Georgia’s chief federal prosecutor, U.S. Attorney David Nahmias, said the video “constitutes child pornography under federal law,” and he called on McDade’s office to stop releasing copies.

I hope McDade gets the book thrown at him on this one. Whatever crime Wilson committed is minor compared with the DA distributing the video to others who do not need to see it. He has probably put everyone who received the video in danger of facing child pornography possession charges. And what’s to stop one of these copies from somehow making its way to the general public via the internet or other means? It’s a little curious to me why the DA believes he needs to make his point in the court of public opinion instead of a court of law. He knows that the public is not on his side but he may win in the court of law (unfortunately).

But like Michael Nifong, David McDade will probably avoid criminal prosecution. Meanwhile, Genarlow Wilson serves a 10 year prison sentence for receiving consensual oral sex from a young lady less than 2 years younger than him. Isn’t our criminal justice system just wonderful!

Related Posts:
More Mandatory Minimums Madness: The “Sexual Predator” Edition (Part I and Part II)

Don’t Stop With Scooter

Over at Reason, Jacob Sullum suggests that President Bush take a look a few other unjust sentences now that he’s commuted Scooter Libbey’s prison sentence:

Consider Weldon Angelos, a 24-year-old Utah record producer with two children who in 2004 was sent to prison for 55 years—a life sentence, in effect—because he owned guns when he sold a police informant two eight-ounce bags of marijuana, thereby triggering mandatory minimum sentencing provisions aimed at violent criminals. When he imposed the sentence, U.S. District Judge Paul Cassell urged Bush to commute it, calling it “unjust, cruel, and even irrational.”

A gun also figured in the case of Monica Clyburn, a 38-year-old mother of four who more than a decade ago went with her boyfriend to sell his pistol at a Florida pawnshop. Because he did not have ID, she signed the pawn slip and left her thumb print. Clyburn, who had been convicted of selling three $20 rocks of crack cocaine to an undercover officer several years before, was prohibited from owning firearms, so this pawnshop visit led to a 15-year mandatory minimum sentence she is still serving. “I never even held the gun,” she says.

Brian Ison had no gun; he was just in the wrong place (his methamphetamine dealer’s mobile home in Harrodsburg, Kentucky) at the wrong time (during a 2001 bust). Witnesses said they thought they had seen Ison help cook meth, but he insisted he was only a customer. Turning down a plea agreement that would have resulted in a two-year sentence, the 19-year-old was convicted of manufacturing and received a sentence similar to those imposed on the two cooks who ran the operation: 11 years, three months.

The difference, of course, is that none of these people is politically connected. And none of them are friends of the President or Vice-President. So they’ll probably rot in prison while Scooter sips wine at the country club.

Genarlow Wilson Is Still In Jail

By now, Genarlow Wilson’s story should be familiar to everyone. At 17 he was convicted of having consenual oral sex with his fifteen year old girlfriend and, because of the absurdity of Georgia’s sex offender laws, he was sentenced to ten years in prison.

Earlier this month, the judge in charge of his case reduced Wilson’s conviction to his misdemeanor and ordered his immediate release. Wilson had already spent two years in prison, and that would’ve seemed to have been the end of it, except the Georgia Attorney General filed an appeal.

Yesterday, Wilson learned that he would not be released while that appeal is pending:

Genarlow Wilson, whose 10-year prison sentence for having consensual oral sex with a 15-year-old when he was 17 was voided by a judge earlier this month, is not eligible to be released on bail while the state appeals his sentence, a judge ruled today.

The ruling, which came just days after investors announced they’d post a $1 million bond for Wilson, likely means Wilson will remain in jail for several more months. The Georgia Supreme Court is scheduled to hear his case in October.

The order, issued by Douglas County Superior Court Judge David Emerson, canceled the bond hearing that he originally set for July 5.

In his Wednesday ruling, Emerson cited a Georgia law that prevents trial courts from granting bail to people convicted of certain crimes, including aggravated child molestation, when the original sentence exceeds five years, as is the case with Wilson.

“As the court has no authority to grant an appeal bond in this case, there is no need for an evidentiary hearing on the defendant’s eligibility for a bond,” Emerson wrote in a three-page order.

It would appear that the Judge didn’t do anything wrong here. He simply doesn’t have the authority to release Wilson on appeal because of the type of the crime he was convicted of committing. The fault lies with the Georgia legislature for writing an absurd law, and with a prosecutor who continues to pursue a case that really ought to be dropped by now.

H/T: Brendan Loy

More Mandatory Minimums Madness: The “Sexual Predator” Edition, Part II

Back in January, I wrote a post about the injustice that befell seventeen year old Genarlow Wilson who was sentenced to ten years in prison for engaging in oral sex with a fifteen year old girl (just a few months shy of sixteen) at a New Year’s party. Wilson was charged with aggravated child molesting. Wilson is now twenty-one and has served his first two years of his ten year sentence.

Today, Judge Thomas H. Wilson (no relation to Genarlow Wilson) ordered the release of Genarlow Wilson stating in his ruling: “The fact that Genarlow Wilson has spent two years in prison for what is now classified as a misdemeanor, and without assistance from this Court, will spend eight more years in prison, is a grave miscarriage of justice.”

Even though the Georgia legislature failed to make the law retroactive, Judge Wilson downgraded the charge from a felony to a misdemeanor because the legislature’s intent was to clarify what the state determined to be child molesting. The reason the legislature passed the bill was in direct response to the Genarlow Wilson case.

Despite pleas from Wilson’s lawyer to the Georgia Attorney General to not file an appeal, the Attorney General made the decision less than two hours after Judge Wilson’s ruling to file an appeal, effectively placing the judge’s ruling on hold and keeping Wilson in prison until his case can be heard by a higher court.

This begs the question: what possible purpose is being served by Genarlow Wilson spending ten years in prison for what most people agree is minor offense? Is it really fair to characterize a seventeen year old having sexual contact with someone less than two years younger than him as a child molester? Is this young man truly a threat to children if he is released back into society? Judge Wilson had it right: two years for this offense is enough. Hopefully, the next judge who hears this case will also be as reasonable.

Bush Pulls Out Veto Pen When Dems Control Congress

Bush Administration intends to veto hate crimes bill:

The Administration favors strong criminal penalties for violent crime, including crime based on personal characteristics, such as race, color, religion, or national origin. However, the Administration believes that H.R. 1592 is unnecessary and constitutionally questionable. If H.R. 1592 were presented to the President, his senior advisors would recommend that he veto the bill.

State and local criminal laws already provide criminal penalties for the violence addressed by the new Federal crime defined in section 7 of H.R. 1592, and many of these laws carry stricter penalties (including mandatory minimums and the death penalty) than the proposed language in H.R. 1592. State and local law enforcement agencies and courts have the capability to enforce those penalties and are doing so effectively. There has been no persuasive demonstration of any need to federalize such a potentially large range of violent crime enforcement, and doing so is inconsistent with the proper allocation of criminal enforcement responsibilities between the different levels of government. In addition, almost every State in the country can actively prosecute hate crimes under the State’s own hate crimes law.

H.R. 1592 prohibits willfully causing or attempting to cause bodily injury to any person based upon the victim’s race, color, religion, or national origin, gender, sexual orientation, gender identity, or disability. The Administration notes that the bill would leave other classes (such as the elderly, members of the military, police officers, and victims of prior crimes) without similar special status. The Administration believes that all violent crimes are unacceptable, regardless of the victims, and should be punished firmly.

Moreover, the bill’s proposed section 249(a)(1) of title 18 of the U.S. Code raises constitutional concerns. Federalization of criminal law concerning the violence prohibited by the bill would be constitutional only if done in the implementation of a power granted to the Federal government, such as the power to protect Federal personnel, to regulate interstate commerce, or to enforce equal protection of the laws. Section 249(a)(1) is not by its terms limited to the exercise of such a power, and it is not at all clear that sufficient factual or legal grounds exist to uphold this provision of H.R. 1592.

I’m not going to accuse Bush of doing this for political reasons, because his record on hate crimes legislation is clear all the way back to his days as Governor of Texas. I do take issue with this statement’s description of the bill’s Constitutionality, as he hasn’t exactly followed other provisions of that document (i.e. where is No Child Left Behind a power granted to the Feds?). Seems pretty convenient to invoke it now.

But what really strikes me is the thought that if this was being driven by a Republican congress, Bush wouldn’t hesitate to sign it. He signed and championed NCLB. He signed McCain-Feingold, even though he believed it was unconstitutional. He even threatened to veto the Transportation bill if it reached above a certain cost, and signed it anyway when it blew straight through that cost. I have to think if it were his own party asking for this, he’d stamp it and send it right through.

Not that I’m complaining, of course. The best thing that George W. Bush can do is try to veto every bit of pork-filled bad legislation the Democrats throw at him. He should have been vetoing every bit of pork-filled bad legislation the Republicans threw at him for six years. I won’t complain if he starts now, but for him to act as if it’s a constitutional matter doesn’t fool me.

Hat Tip: Cato @ Liberty

A Youthful Indiscretion

Democrat presidential candidate and Illinois Senator Barack Obama is only the latest politician to admit to using drugs in his youth. Bill Clinton, Al Gore, Bill Bradley, Clarence Thomas, Newt Gingrich, John Kerry, John Edwards, Howard Dean and a number of who’s who of the political class (of both political parties) have admitted to using marijuana at some point in each of their younger days. Though President George W. Bush has made no secret of once being an alcoholic, he never has admitted to using illegal drugs even as rumors of his past ‘youthful indiscretions’ by others persist.

Even those who are in favor of ratcheting up the war on (some) drugs who have never personally used drugs ask for leniency when it comes to their friends or their family members. Republican presidential hopeful and Arizona Senator John McCain wants to ‘redouble efforts’ of the war on (some) drugs. But should these redoubled efforts apply to someone like his wife Cindy McCain who in the mid 1990’s was caught stealing Percocet and Vicodin? Interestingly enough, the penalty for illegally possessing these drugs is a year in prison for each pill and a mandatory fine. Does anyone believe for a minute that Cindy McCain spent any time in the slammer or paid any fines? Of course not, Senators’ wives play by a different set of rules.

And then there’s Noelle Bush, the daughter of former Florida Governor Jeb Bush (and President Bush’s niece) who was busted in 2002 for trying to use a fraudulent prescription to illegally obtain the prescription drug Xanax. As I wrote in a previous post, Florida has an alternative program for drug offenders called drug courts. Drug offenders who choose not to risk a prison sentence up to five years can basically plead guilty and submit to the terms of the drug court (which often means mandatory drug rehab and probation). Ms. Bush chose this option and reported to a court ordered drug rehab program. In September of 2002, Bush was caught with ‘2 grams of a white rock substance’ which tested positive for cocaine (crack?). The court later sentenced her to a whopping 10 days in jail for violating her probation.

I have nothing against Cindy McCain or Noelle Bush or any of the aforementioned politicians as it relates to the youthful indiscretions of their pasts. What I do have a problem with is their blatant hypocrisy. If rehab is good enough for Noelle Bush, why isn’t it enough for the Garrison brothers who were sentenced to 15 and 19 years in prison for ‘powder cocaine and crack cocaine conspiracy’? (Note: no drugs or paraphernalia were ever found in the investigation. Read the story here). If Cindy McCain can obtain illegal prescriptions for her pain, why can’t Angel Raich smoke marijuana to relieve herself of hers under a doctor’s recommendation?

Our prisons are filled with non-violent drug offenders who cannot offer the ‘youthful indiscretion’ explanation as a legal defense. Meanwhile, many of these same individuals who survived the war on (some) drugs win enough support from enough voters to place them in office only to empower the government even further to terrorize the American public. These are the types of policies which turn private citizens into criminals for defending their own homes in botched police raids. In the case of Cory Maye, the police stormed his apartment late at night even though his neighbor was the primary target of the raid. As a result, Maye fatally shot Officer Ron Jones after Jones successfully kicked in the door. Maye was convicted of murder even though the court failed to prove that he knew he was shooting at a police officer at the time he pulled the trigger (Maye testified that he thought the police were intruders meaning to do him and his daughter harm; the police did not identify themselves as they kicked in the door). Others such as Kathryn Johnston were not as lucky as Maye (Johnson was fatally shot by the police after she fired her gun. She apparently also thought that the police were intruders meaning to do her harm). The war on (some) drugs is no joke to the families of these victims.

As the 2008 presidential campaign heats up, its important to know where the candidates stand on these issues, especially those who have admitted to doing drugs in the past. Interestingly, Barack Obama, Hillary Clinton, John Edwards, Joe Biden, Bill Richardson, John McCain, Rudolph Giuliani, John Cox, Duncan Hunter, Mitt Romney and Tom Tancredo do not have official positions listed on their campaign websites concerning the war on (some) drugs. One thing we can be sure of, none of these candidates are looking to ‘re-deploy’ from the war on (some) drugs anytime soon.

Still, there are apparent differences of opinion among the candidates on how to proceed on the war on (some) drugs from here. Republican candidate and Texas Representative Ron Paul and Democrat candidate and Ohio Representative Dennis Kucinich hope to put an immediate end to the drug war. Edwards and Clinton want to move toward the drug court solution to give non-violent drug offenders a chance to be rehabilitated. Edwards also voted against increasing penalties for certain drug-related crimes and in his 2004 run for president wanted to end the criminal distinction between rock and powder cocaine. Republican candidate and Arkansas Governor Mike Huckabee admitted in 1999 that the current approach on the drug war isn’t working (admitting the problem is a great first step Governor). McCain seems to be the most hawkish on the drug war. McCain wants to increase penalties for drug dealers and would like to see ‘drug kingpins’ put to death (Interestingly, McCain doesn’t seem to want to increase penalties for drug users. I wonder if his wife’s drug problem had any influence on this position?).

The 2008 campaign is still in its infancy and much of these positions are yet to be fleshed out. I predict that more youthful indiscretions will be exposed. It’s up to the voting public to hold these candidates accountable and demand equal treatment under the law.

Seven Years for Shoving?

That’s the sentence 14 year old Shaquanda Cotton received in Paris, TX after shoving a hall monitor in a dispute. Now, while readers of this site certainly would be interested in such an apparent miscarriage of justice, I don’t think it’s too much to say that this wouldn’t get much play in the national media unless there was another angle.

Shaquanda Cotton is black. Another 14 year old girl in the same town received a sentence of probation from the same judge after burning down her family’s home. The other girl is white. It would seem the charge of racism is fairly easy to make in this case. That’s certainly the angle this Trib article takes:

And then there is the case that most troubles Cherry and leaders of the Texas NAACP, involving a 14-year-old black freshman, Shaquanda Cotton, who shoved a hall monitor at Paris High School in a dispute over entering the building before the school day had officially begun.

The youth had no prior arrest record, and the hall monitor–a 58-year-old teacher’s aide–was not seriously injured. But Shaquanda was tried in March 2006 in the town’s juvenile court, convicted of “assault on a public servant” and sentenced by Lamar County Judge Chuck Superville to prison for up to 7 years, until she turns 21.

Just three months earlier, Superville sentenced a 14-year-old white girl, convicted of arson for burning down her family’s house, to probation.

“All Shaquanda did was grab somebody and she will be in jail for 5 or 6 years?” said Gary Bledsoe, an Austin attorney who is president of the state NAACP branch. “It’s like they are sending a signal to black folks in Paris that you stay in your place in this community, in the shadows, intimidated.”

However, as in most cases of this nature, things are not so neatly cut and dried. There’s a lot going on behind the scenes in this one, and this article from the local paper that focuses on the Judge and his decision ties a lot of that together. Money quotes:

County Judge Chuck Superville says he fears for the community’s safety and is calling for the national media and other organizations to investigate the facts before drawing conclusions about the Shaquanda Cotton case.

The judge said a March 12 story in The Chicago Tribune unfairly painted the community as racist and a recent protest as well as the threat of future protests by organized groups with national media coverage could “spin this thing out of control.”

Superville said he has refrained from commenting until now because of his position as the judge in the Cotton case, but that he believes he has a higher duty as county judge to maintain order in the community.

“I call on the media and others involved to go to the public record to get the facts of the case before they rush to judgment,” Superville said Saturday.

< ...>

“If Shaquanda had been white, the outcome would have been the same,” Superville said. “My decision was based on facts and law and I am confident this was the correct decision based on the facts I was presented.”

< ...>

Superville said he gave the 14-year old an indeterminate sentence up to seven years — her 21st birthday.

“Once I set the indeterminate sentence, Shaquanda holds the key to her jail cell,” Superville said. “It is up to the child and TYC.”

< ...>

“The juvenile officer said the mother refused to cooperate and said he had no reason to believe the mother would cooperate if Shaquanda received probation,” Superville said.

“That theme was repeated witness after witness—that the mother made it impossible to help Shaquanda,” Superville said. “She blamed everyone except the child for misbehavior.”

So we have a mother that refuses to hold her child accountable and, if I may indulge in a stereotype, appears to be playing the “angry black woman” card. We have the national media and organizations like the NAACP getting ahold of the story and turning it into a federal case. We have a town with apparent race issues. But none of that matters. At the end of the day, we have a now 15 year old girl who will quite possibly be in jail until her 21st birthday because everyone failed her. The system, her community, and her family. How is Shaquanda doing now? From the Trib story:

Inside the youth prison in Brownwood where she has been incarcerated for the past 10 months–a prison currently at the center of a state scandal involving a guard who allegedly sexually abused teenage inmates–Shaquanda, who is now 15, says she has not been doing well.

Three times she has tried to injure herself, first by scratching her face, then by cutting her arm. The last time, she said, she copied a method she saw another young inmate try, knotting a sweater around her neck and yanking it tight so she couldn’t breathe. The guards noticed her sprawled inside her cell before it was too late.

She tried to harm herself, Shaquanda said, out of depression, desperation and fear of the hardened young thieves, robbers, sex offenders and parole violators all around her whom she must try to avoid each day.

“I get paranoid when I get around some of these girls,” Shaquanda said. “Sometimes I feel like I just can’t do this no more–that I can’t survive this.”

Shaquanda needs someone to give her the help she’s not received from the places I listed above. Somehow I doubt playing the race card and turning this into a national Jesse Jackson/Al Sharpton media spectacle is going to get her that. On top of that, a system that allows a 14 year old with no prior record to be sentenced to 7 years in prison for shoving is seriously broken, regardless of race.

A lot of stuff is wrong in this case, and it doesn’t appear that any of it is going to get better anytime soon.

h/t: Chap. More here, including some good thoughts about the failure of the community to help Shaquanda.

Anyone Who Believes America is Winning the Drug War Must Be High

Originally posted November 10, 2004 at Fearless Philosophy for Free Minds

Could legalizing drugs be the answer to reducing drug use in America? Most people would probably call that idea crazy. Why would the government want to encourage drug use? This is a misconception most people have when the taboo topic of legalizing drugs is brought up. Many people believe that because something is legal, the government is somehow saying it is right. Tobacco is a legal product yet it is constantly under attack. When was the last time the surgeon general told the public that tobacco is safe and healthy? Could this reasoning apply to other drugs that are currently illegal, yet kill far fewer people than tobacco? In fact, tobacco kills more people every year than all illicit drugs combined (McWilliams, 1996). What would happen if tobacco was suddenly illegal? Would people who want to smoke try to find and buy cigarettes despite it being a banned substance? What would the consequences be of this prohibition? The result of course would be a complete failure, just as the prohibition of drugs has been a failure. There are three main reasons why the prohibition of illegal drugs should end: it is ineffective, it causes unnecessary strain on the criminal justice system, and above all, it is dangerous.
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