Articles Tagged with prison

In April of 2010, Mr. Cornell had his home raided by police where 1/16th of an ounce of marijuana had been found – not enough to roll a joint. None of the potential jurors called for the case where willing to consider convicting someone for possessing a very small amount of marijuana.[1]

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November 16th 2010, Touray Cornell from Montana, breathed a sigh of relief and smiled as Judge “Dusty” Deschamps convened his court to report that out of all the potential jurors who had been called, not one would be willing to convict Mr. Cornell. Dumbfounded by the jurors’ decision, the District Attorney quickly spoke to Mr. Cornell’s defense counsel and an immediate plea deal was made. Mr. Cornell walked out free without admitting guilt and without probation.

Mr. Cornell witnessed the power of Jury Nullification, a show of citizen’s power through the legal system have a long and storied history in America. it is the power of Jury nullification and Mr. Cornell saw a version of that power first hand.

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The phrase “Mass Incarceration” has become synonymous with a failed criminal justice system, but millions of people were incarcerated years before we acknowledged mass criminalization.[1]  The data show that the prison population had bloated before policymakers and the public recognized it was out of control.

In the 1970s, the U.S. decided that prison was the answer to combating crime, however, studies show that the high incarceration rate didn’t reduce serious crimes. Between 1993 and 2001, the prison population increased by 66%, but serious crime only reduced by 2-5%. During the same period, the U.S. spent $53 billion to support imprisonment policies – a high price of using many tax dollars for a low reduction in crime.[2]

Although the U.S. was incarcerating at exorbitant rates, credit goes to author, Michelle Alexander, for publishing prison facts in her 2010 book The New Jim Crow: Mass Incarceration in the Age of Colorblindness. Shocking statistics included in The New Jim Crow increased its popularity as readers shared the discoveries on social media encouraging advocates to pressure policymakers for prison reform.

dreamstime_xs_22155154The harmful practices of America’s “war on drugs” have taken a toll on the lives of countless Americans, yet only recently has a new repercussion of the drug war come to light.

The yearly cost per incarcerated prisoner in many states far exceeds the yearly expense (per pupil) of educating students in public schools. With most states overburdened by swelling prison populations and unable to devote necessary resources to education, the country will have difficulty clawing its way out of the hole created by ‘drug war’ policies.

The growing number of incarcerated persons in American prisons is due to the ‘tough on drugs’ policies of the late 20th Century.  As Kathleen Miles of The Huffington Post points out, the number of inmates in prison for non-violent, drug-related offenses represents more than half of the American prison population. This number of incarcerated drug offenders has increased rapidly over the past half century – up from 16% in 1970.

dreamstime_xs_22155154.jpgDespite a relatively low crime rate during the last decade, between 1970 and 2010, Texas’ prison population increased by 995%, even though the state’s population only increased by 124% during that same time period. However, Texas’ record-setting incarceration rates are not accidental–meaning this trend can still be reversed. Critics of excessive legislation and prosecutorial strategies such as mandatory minimum sentences stress that our excessive prison population is a direct result of the Texas Legislature constantly criminalizing new acts. Over the last decade, the Legislature has created an average of 40 new felonies during each legislative session while simultaneously increasing penalties for existing crimes. At present, Texas recognizes over 2,500 felony crimes.

Another prime contributor to Texas’ prison population explosion is unarguably the U.S.’s failed war on drugs. At this point, we can all agree that “prison therapy” is hugely ineffective in helping defendants cope with addiction. Considering the fact that over 70,000 people both enter and leave Texas state prisons every year, only 22% of which have been convicted of a violent crime. It should be imperative that we are taking steps to treat and reform inmates during their served time, rather than hoping that imprisonment itself is enough to deter addiction and future bad behavior. Treating a public health problem as a criminal problem is not going to end substance addiction, especially when past imprisonment keeps a person disenfranchised within their community, often without the ability to find a job or place to live. And all too often, the communities that are most impacted by this injustice are young minorities, with a new study finding that by age 23, 49% of black males and 44% of Hispanic males have been arrested, compared with only 38% of white males.

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iStock_000009135835_ExtraSmall.jpgIn Texas, Marijuana is an illegal substance that is subject to forfeiture by the state. While this may be of no surprise, you may not be familiar with the forfeiture process and how it works. The government has different modes and methods of dealing with controlled substances. Some of these processes do not even require a court order, they occur automatically due to statutory regulation. This article discusses and describes the process the government implements after it seizes controlled substances, such as marijuana.

Let’s look at a hypothetical traffic stop situation. A driver gets pulled over and the officer looks in his back seat and sees a sizable amount of marijuana. After the driver gets arrested, the officer seizes the marijuana and seals it in an evidence bag. It is at this point that the seized marijuana is put into the custody of the police. This entire process, from seizure, to storage, record keeping, court, and then finally destruction is called the “Chain of Custody” (COC). There are very detailed and strict rules regulating how the police can handle evidence while it is in their custody. If they break one of these rules, the “chain” of custody is broken and the compromised evidence becomes subject to objection and scrutiny.

Assuming the COC is maintained, the case will end with a verdict. The seized marijuana is then subject to “summary destruction”. Tex. Health & Safety Code Ann. § 481.154 . Summary destruction is a process that differs among departments, but there are three certain rules that process must follow: “(1) more than one person to witness the destruction of the property or plants; (2) the preparation of an inventory of the property or plants destroyed; and (3) the preparation of a statement that contains the names of the persons who witness the destruction and the details of the destruction.” Id. After the seized marijuana is destroyed, “a document prepared under a rule adopted under this section must be completed, retained, and made available for inspection by the director.” Id. With this document, the seized marijuana is recorded and properly disposed of per statute.

iStock_000006052358XSmall.jpgThe right to remain silent is a hot topic of Constitutional rights. In a brief nutshell, this is how the right to remain silent works. A defendant’s silence cannot be used in Court to show his or her guilt. When a defendant can invoke this right, however, is a little bit of a tricky concept. First and foremost, the defendant has to be under arrest to invoke his right to remain silent. If a police officer arrests a suspect, the officer must read the suspect his Miranda rights, which includes the right to remain silent. There are other areas where silence receives different Constitutional treatment, such as the right to remain silent and not testify during trial. A criminal defendant’s silence is usually protected by the Constitution and not allowed to be used by the prosecution to prove guilt.

However, a recent Supreme Court decision has created new limits and rules on the right to silence. This decision is based on a recent Texas criminal case involving Genovevo Salinas. The defendant in this case was at a party that got out of hand. Shots were fired at the party and two men were killed as a result. The police found Salinas at the party and brought him in for questioning. Salinas had a shotgun that he turned over to the police and he began answering their questions. He was being cooperative until the police asked him why the shotgun shells that were found at the crime scene matched Salinas’s shotgun. Salinas did not answer this question and instead remained silent. At this point, Salinas was not under a formal arrest and was not given his Miranda warnings as a result.

Salinas was eventually charged with murder. During his trial, the prosecution aggressively used his silence about the shotgun during closing arguments. Salinas was convicted and appealed his case. His case eventually made it to the Supreme Court. When it reached the Supreme Court Justices, the main issue was whether the defendant’s silence could be used during the closing argument. The Court held, in a 5-4 decision, that the silence was usable because it was pre-Miranda silence. The Texas Court of Criminal Appeals explained that “pre-arrest, pre-Miranda silence is not protected by the Fifth Amendment right against self-incrimination, and that prosecutors may comment on such silence regardless of whether a defendant testifies.” Justice Samuel Alito further explained “Salinas’ Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question. It has long been settled that the privilege ‘generally is not self-executing’ and that a witness who desires its protection must claim it.” So if you remain silent before you get arrested, that silence can be used to show your guilt unless you CLAIM your right to remain silent.

iStock_000009656284XSmall.jpgIn 1971, officers arrested Ronald Kelly, a high school student at the time, for possession of a small bag of marijuana. Kelly received a misdemeanor conviction and was punished by one year of probation. Shortly after, Kelly served in the U.S. Army for 20 years where he gained more experience in properly handling firearms than most lawful gun owners possess. Despite his expertise in firearms and extended service to his country, Kelly was recently denied approval for a .22 caliber rifle at a Texas Wal-Mart due to his prior marijuana conviction.

The FBI’s National Instant Criminal Background Check System can prevent an adult from owning a gun if that adult was convicted of a crime, even a misdemeanor, which could have subjected the person to more than two years imprisonment. Since Kelly’s marijuana conviction could have technically landed him in jail for more than two years, even though it did not, the FBI may refuse the veteran’s firearm application. Many Texans wishing to exercise their second amendment right to bear arms seemingly face this issue since Texas is among the top states that file the most firearm applications. Further, federal law prohibits people who simply use marijuana, a substance that is not prone to make people violent, from possessing firearms and ammunition. This federal prohibition applies even if the state where the applicant resides has legalized, medicalized, or decriminalized the substance. Applicants are asked on firearm applications if they are unlawful users of a controlled substance and, if the applicant answers falsely, he could face felony charges.

A rejected firearm applicant could legally challenge his denial and petition for his right to bear arms. However, even if the government’s denial lacks an adequate basis, like an actual record of the applicant’s marijuana conviction, the burden is on the applicant to produce the evidence to argue against the FBI’s rejection. Once the FBI denies a firearm application for a prior conviction, the government does not have to produce the records of the conviction to show the denial was justified.

iStock_000006746569XSmall.jpgBy their very title, the role of law enforcement officials has traditionally been limited to enforcing the laws handed down by our popularly elected officials. However, a letter jointly written by several national law enforcement agencies makes it clear that the majority of law enforcement agents feel they should be able to determine what policies and laws to follow. The letter, written in response to U.S. Attorney General Eric Holder’s August announcement that the federal government would not challenge laws passed by Colorado and Washington legalizing recreational marijuana, was signed by the Major County Sheriffs’ Association, the National Sheriffs’ Association, the Association of State Criminal Investigative Agencies, the International Association of Chiefs of Police, the National Narcotic Officers Associations’ Coalition, the Major Cities Chiefs Police Association and the Police Executive Research Forum. “It is unacceptable that the Department of Justice did not consult our organizations — whose members will be directly impacted — for meaningful input ahead of this important decision,” the letter read. “Our organizations were given notice just thirty minutes before the official announcement was made public and were not given the adequate forum ahead of time to express our concerns with the Department’s conclusion on this matter. Simply ‘checking the box’ by alerting law enforcement officials right before a decision is announced is not enough and certainly does not show an understanding of the value the Federal, state, local and tribal law enforcement partnerships bring to the Department of Justice and the public safety discussion.” Even though scientists have debunked the myth that marijuana is a gateway drug, the letter cited the gateway drug theory to oppose marijuana reform. Interestingly, the letter failed to address the fact that marijuana prohibition has not reduced marijuana usage among US residents, even while law enforcement has dramatically increased the number of jailed drug offenders.

One would think law enforcement officials would welcome eliminating a major revenue source for foreign and domestic organized criminals, however to the contrary, they have been staunch opponents of legalizing marijuana for personal or medicinal use because, while it remains contraband, marijuana is a major source of funding for law enforcement. Police departments are often able to keep a large portion of the assets they seize during drug raids, even if charges are never brought. And federal grants for drug war operations make up a sizable portion of local law enforcement funding. It is obvious that Law Enforcement has a financial incentive to maintain the “War on Drugs” and that they are willing to utilize unfounded data to support their anti-marijuana reform claims.

In addition, law enforcement officials seem to have entirely missed Holder’s emphasis on allowing Washington and Colorado a trial period during which the Justice Department will be very closely monitoring any negative effect to public safety, public health and other community interests. Coupled with Holder’s announcement was a memo issued to U.S. attorneys across the country by Deputy Attorney General James Cole. Cole’s letter stated that the administration’s decision rests on its expectation that the states would maintain strong and effective regulation and enforcement systems to address any threat to public safety and health.

iStock_000005542834XSmall (2).jpgIn Texas, state jail felons have the highest recidivism rates among all released inmates: over 33% of state jail felons will be convicted of a new crime after being released compared with 26% of regular prisoners. . Those familiar with Texas criminal law are well aware that our system is heavily based on the theory of negative incentives–commit a crime, and the government will punish you. The opposite idea, using positive incentives to reduce crime and reoffender rates, is seldom used, making a bill recently vetoed in Texas particularly important in the mission to reduce felon recidivism in Texas.

House Bill 1790 (HB 1790), introduced by Texas State Representative Oscar Longoria, proposed allowing state jail felons who have successfully completed probation to reduce the felony charge on their record to a Class A misdemeanor. In order to take advantage of HB 1790, the defendant would need to successfully meet all probation terms, and then petition the court to reduce their conviction seventy days prior to the end of their probation period. The defendant would be informed of the reduction incentive by their judge during sentencing. HB 1790 excluded state felons who have committed assaults, domestic violence or other “crimes against persons” from reducing their records under HB 1790.

Supporters had high hopes that HB 1790, which was backed by organizations such as the Texas Public Policy Foundation, would help alleviate overwhelming state jail populations, reduce the expense of prisoner healthcare and, most importantly, motivate defendants to successfully complete probation requirements–including paying full restitution to victims and their families. The incentive for felons: a life without a haunting felony record.

iStock_000007992706XSmall.jpgA conservative political activist and mother, Jessica Peck, co-founded the Women’s Marijuana Movement (WMM), an organization dedicated to changing the harmful laws of marijuana prohibition. As a primary goal, the organization seeks to inform others that marijuana use is a much safer recreational activity than alcohol consumption. Members of WMM include parents driven in the conviction that marijuana reform will create a safer environment for their children and young professionals that have grown weary with a system that permits, and even encourages, dangerous use of alcohol but criminally punishes the comparatively less harmful usage of marijuana. Women are increasingly moving in favor of marijuana reform, overcoming a historical gender gap on the issue.

Historically, males have favored marijuana reform more so than females have. For example, in 2010, national Gallup poll revealed that 51 percent of males favored marijuana legalization while only 41 percent of females were in favor. Even in Marijuana-friendly states, in the recent past women have shown much less support, as seen by a 2011 poll of Washington State voters where 56 percent of males support legalization, but a significantly smaller 37 percent of females believed in marijuana legalization.

However, much of the gender gap has closed, if not disappeared, regarding marijuana reform support. A 2013 poll shows 48 percent of women nationally now support marijuana legalization, a notable increase from the 41 percent of support in 2010. Women’s support in favor of ending marijuana prohibition was pivotal to the marijuana legalization victories in Colorado and Washington State. In polls leading up to the Colorado vote to legalize, 49 percent of women voiced their support for Amendment 64. Confirming the drastic shift of marijuana views of women, exit polls of the Colorado marijuana vote showed 53 percent of women voters supported the legalization measure. This result was very different from the failed 2006 Colorado vote to legalize, where the majority of women voted in favor of maintaining marijuana prohibition. Joining Colorado’s 2012 marijuana victory, the majority of women voters in Washington State also voted favorably to legalize marijuana.