Category Archives: Mandatory Minimum Sentences

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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More Mandatory Minimums Madness: The “Sexual Predator” Edition

Cross posted at Fearless Philosophy for Free Minds

I have written in the past about the insanity of mandatory minimum sentencing laws on at least two occasions (here, and here). In my previous posts, the minimum sentencing guidelines had to do with the war on drugs. In this latest outrage however, this mandatory minimum sentence has to do with “aggravated child molesting.”

In theory, mandatory minimum sentencing for certain crimes seems like a great idea. The problem with such a “one size fits all” approach is it gives judges absolutely no discretion when it comes to particular cases. No matter how well written or intentioned a law may be, there are always going to be cases where the application of the law is simply unjust. The case of Genarlow Wilson is a perfect example of what I mean.

From The New York Times article “Georgia Man Fights Conviction as Molester”

[Genarlow Wilson] was sentenced to 10 years in prison without parole for having consensual oral sex with a 15-year-old girl at a New Year’s Eve party, an offense that constituted aggravated child molesting, even though Mr. Wilson himself was only 17.

[?]

Disturbed by Mr. Wilson’s conviction, the Legislature changed the law in March to ensure that most sex between teenagers be treated as a misdemeanor. But the State Supreme Court said legislators had chosen not to make the law retroactive.

[?]

Even more confounding, at the time of Mr. Wilson?s offense, a so-called “Romeo and Juliet” exception had already been made for sexual intercourse between teenagers. “Had Genarlow had intercourse with this girl, had he gotten her pregnant, he could only have been charged with a misdemeanor and punished up to 12 months,”? said Brenda Joy Bernstein, Mr. Wilson’s lawyer.

So let me get this straight: Genarlow Wilson is 17 and engages in oral sex with a girl who is 2 years younger than he is. At the age of 15, the girl is not at the legal age of consent in Georgia. However, had the two had “consensual” sex instead of oral sex, Wilson would have been charged with a misdemeanor offense carrying a maximum sentence 1 year but because they didn’t go all the way, Wilson is facing an 11 year sentence and will not be eligible for parole until after he has served 10 years. OR if Wilson chooses, he can have his sentence reduced to 5 to 7 years with a possibility of parole if he agrees to register as a sex offender.

So why won’t Wilson take the deal? According to the aforementioned article, Wilson is quoted as saying the following:

“Even after serving time in prison, I would have to register as a sex offender wherever I lived and if I applied for a job for the rest of my life, all for participating in a consensual sex act with a girl just two years younger than me,” he told a reporter for Atlanta magazine last year, adding that he would not even be able to move back in with his mother because he has an 8-year-old sister. “It’s a lifelong sentence in itself. I am not a child molester.”

There is no question that Wilson used poor judgment in engaging in oral sex with a girl who was under the age of consent. But he is quite right in making a distinction between a child molester and a couple of horny teenagers. When I think of the term “child molester” I tend to think of an adult (usually middle-aged) having inappropriate contact with a prepubescent child. These are the real sexual predators who should be put away possibly forever.

It seems to me that there needs to be a serious discussion about where exactly the line should be drawn. Clearly, children should be safe from predators but at what point is a child an adolescent of an age where he or she can be held responsible for his or her choices? I believe there should be some sort of sliding scale taking into consideration the ages of the parties involved. Is an 18 year old having sex or sexual contact with 17 year old molestation, regardless of the age of consent? I think not! What about a 30 year old with a 17 year old? I tend to think so!

There seems to be no clear answers; what might seem reasonable to me might not seem reasonable to you. When a “zero tolerance” policy in the form of mandatory minimum sentences is in play, there can be no thoughtful discussions in the jury room. It’s all or nothing.

Genarlow Wilson has served nearly 2 years for this offense. Does he really need to serve another 8 to teach him a lesson? Alternatively, should he be required to register as a sex offender for the rest of his life? The answer to both of these questions depend on whether or not one believes that Genarlow Wilson is a threat to children based on his actions as A 17 YEAR OLD WITH A GIRL WHO WAS ONLY 2 YEARS YOUNGER THAN HIM. If you ask me, he has already done enough time.

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