Blog - Page 2 of 24 - Experienced Criminal Lawyers

Mandatory Minimum Felony Drug Charges for Nonviolent Offenses Are a Terrible Idea

Mandatory minimum sentences were part of the tough on crime movement a few decades ago. They seek to dole out the harshest penalties to people convicted of felony drug charges and more. In the case of these non-violent offenders, a several-year stint in prison is as likely to “help” them and their community as a kick in the rear.

In other words, mandatory minimums are ineffective and actually counterproductive. Fortunately, some lawmakers are coming to terms with this and supporting a “safety valve” that would allow federal judges more flexibility in these cases.

Currently, if you are found guilty of a felony drug charge or other offense that falls under mandatory minimums, the judge’s hands are tied. They must sentence you to at least as much as the law prescribes. This is unfair for several reasons, namely because no two cases are the same.

Why Felony Drug Charges Shouldn’t Always Trigger Stiff Mandatory Minimums

U.S. Senators Patrick Leahy and Rand Paul are pushing for the Justice Safety Valve Act of 2013, hoping that by allowing judges greater flexibility in sentencing we can undo some of the damage brought on by these often draconian sentences. While this law applies to the federal mandatory minimum laws, states are also making changes and the passage of this could signal additional reform.

The American people are ready to make sentencing reform a priority, and the states are leading the way. Forced by budget constraints to make tough political decisions, states have reduced prison populations while improving community safety. Yet the federal system has lagged behind, and our prison population continues to grow. Our reliance on mandatory minimums has been a great mistake. These sentences have not reduced crime, but they have imprisoned people, particularly non-violent offenders, for far longer than is just or beneficial.

– U.S. Sens. Leahy and Paul, U.S. News

In cases where mandatory minimum sentences do not apply, your defense attorney can argue for leniency. Particularly in the case of felony drug charges, they can suggest that the facts of the case, your character, and other circumstances warrant a lighter sentence. In mandatory minimum sentence cases, these things really don’t matter.

The current mandatory minimum laws, both at federal and state levels, have filled our prisons and led to the U.S. being labeled the most incarcerated nation in the world. These long prison sentences do nothing to help ensure the defendant is “reformed” when released and can instead serve to institutionalize them further.

The time for thoughtless “tough on crime” rhetoric has come and gone. Now it’s time to look at intelligent legislation that strengthens, rather than weakens our country and the people within.

Phone App Lets You Check Impairment Levels

Driving drunk, high, or even tired can be a recipe for disaster. Not only do you risk being arrested but you risk being involved in a serious accident. With marijuana laws in flux, police agencies across the nation are on the look-out for people who might be high behind the wheel, and the makers of a new phone app hope to help smokers avoid getting pulled over and possibly charged with a serious crime. [Read more…]

Yes, ‘Big Brother’ Is Monitoring Your Snail-Mail Too

Not many people write letters anymore. Many may have thought of returning to the old-school communication tactic when they learned of the NSA’s program that pulls private information from email and other online sources. But as we are learning, “snail mail” may not be any safer from the eyes of Big Brother.

According to the New York Times, the U.S. Postal Service has been monitoring some mail for over a century, and in recent years began photographing every single piece of mail that’s processed in the country—around 160 billion last year alone.

There are two programs of mail surveillance. Mail covers is a system by which the mail carrier copies information from the front and back of envelopes and packages before delivering them to a certain person. That information is shared usually with a requesting law enforcement group or the feds on issues of national security. The other program, the Mail Isolation Control and Tracking program, simply scans and photographs everything.

The latter system is a sort of better-safe-than-sorry approach. They are basically compiling a data source of all of our mail contacts—similar to what they are doing electronically.

“In the past, mail covers were used when you had a reason to suspect someone of a crime,” said Mark D. Rasche formerly of the Justice Department’s computer crimes unit in the fraud division. “Now it seems to be, ‘Let’s record everyone’s mail so in the future we might go back and see who you were communicating with.’ Essentially you’ve added mail covers on millions of Americans.”

While officials can point to a few cases where the program has helped solve a crime, it hardly seems worth the intrusion. Interestingly, supporters of the system use the same sort of language that critics do, just looking at it from a different perspective.

“It’s a treasure trove of information,” said former F.B. I. agent James J. Wedick, who said he used mail covers in a number of investigations. “Looking at just the outside of letters and other mail, I can see who you bank with, who you communicate with — all kinds of useful information that gives investigators leads that they can then follow up on with a subpoena.”

There are no indications how long the USPS keeps the information. We do know, however, that they cannot open your mail without a warrant, that is, unless they can justify it as an emergency or a foreign intelligence case, as former President George W. Bush affirmed in a 2007 statement.

If the police, feds, or mailman wants your information, it’s becoming increasingly clear that they can easily get it. More accurately—they likely already have it.

Most U.S. Police Have No Eyewitness Policies in Place

There is nothing quite as convincing to a jury as an eyewitness identification. Seeing the victim identify their assailant, for example, can have a profound effect on the people sitting in the courtroom. But, eyewitness identifications are called the “single greatest cause of wrongful convictions”; they are unreliable. And according to a new report, local law enforcement agencies across the country aren’t doing all they can to ensure these identifications don’t send an innocent person to prison. [Read more…]

Supreme Court Rules Silence Can Be Evidence of Guilt

You know that whole “right to remain silent” spiel the police give when they “Mirandize” you or read you your rights? Well it turns out you really don’t have that unequivocal right; you have the right to remain silent sometimes and only when you verbally invoke that right. Yes, in order to remain silent you may have to speak up.

The Supreme Court ruled that a suspect’s silence during pre-arrest questioning can be considered evidence of guilt.

The court was split 5-4 in the decision, with Justice Samuel Alito writing for the majority.

The Fifth Amendment guarantees that no one may be compelled in any criminal case to be a witness against himself; it does not establish an unqualified right to remain silent,” Alito wrote. “Before petitioner could rely on the privilege against self-incrimination, he was required to invoke it,” he added referring to the defendant in the case before the court.

The case in question involved Genovevo Salinas, convicted of shooting two brothers in 1992. During informal questioning and before his arrest, officers engaged Salinas, who answered most of their questions willingly. But, when they asked Salinas if the shotgun shells found at the murder scene would match his weapon, he fell silent. This, the prosecutor said at trial, was evidence of his guilt.

In his appeals, attorneys for Salinas argued that his silence was protected by the Constitution. The Supreme Court felt otherwise.

In their opinion, the Supreme Court justices said Salinas was not protected because he did not “expressly invoke the privilege against self-incrimination in response to the officer’s questions.” In other words, in order to remain silent, you have to not be silent.

In writing for the dissent, Justice Stephen Breyer framed the argument differently.

“The Fifth Amendment prohibits prosecutors from commenting on an individual’s silence where that silence amounts to an effort to avoid becoming a witness against himself…“I would hold that Salinas need not have expressly invoked the Fifth Amendment. The context was that of a criminal investigation. … And it was obvious that the new question sought to ferret out whether Salinas was guilty of murder.”

The High Court’s decision is an interesting one to be sure. However, one issue that cannot be argued is that Salinas did not have to answer their questions at all. Had he been savvy to his rights, he would have asked, “Am I free to leave?” and if the answer was no, demand an attorney be present for questioning.

Local Police Amassing Own DNA Databases

A Supreme Court ruling recently determined that DNA collections at the time of arrest constitute a Constitutional search. In other words, even if you aren’t convicted of an offense, the government can take your DNA. And while this ruling will set the stage for even more liberal DNA seizures at the state and federal levels, a recent article from the New York Times reveals that cities are already taking pretty big liberties in collecting their own DNA databases, without the pesky regulations of the state or feds. [Read more…]

Sign of the Times: Sesame Street Film for Children of Incarcerated Parents

The Sesame Street show that so many of us grew up with has changed considerably over the years. Old characters have moved on and news ones have shown up. But, perhaps the most significant thing the Sesame Workshop has done is a recent attempt to address the heartbreaking number of children who have a parent in prison. This is the world we live in. Where the “land of the free” is ironically the most incarcerated nation in the world, and the children are truly paying the cost. [Read more…]

New Criminal Statutes & Mandatory Minimums

Historically, law enforcement and crime and punishment was left to the states. The states wrote the majority of criminal laws and enforced them as well. But, over the past several decades, the federal government has played an increasing role in the criminal justice system—enacting new criminal laws at an alarming rate of about 500 per decade with a grand total of around 4,500 federal criminal statutes. A recent editorial in the Washington Post aptly equates this rambunctious federal criminal system to a “Sheriff with attention-deficit disorder, haphazardly criminalizing this and that behavior in order to express righteous alarm about various wrongs that excite attention.”

[Read more…]

Taking DNA Samples When Arrested is Allowed by Supreme Court

The Supreme Court ruled last week that police can swab arrestees for a DNA sample as a booking procedure. This means, you don’t have to be guilty of a crime in order for your genetic material to be taken and owned by the government. The (somewhat) good news is that not all states follow the same protocol when it comes to collecting DNA. [Read more…]

Federal Marijuana Excise Tax Bill Introduced

At least one Congressman is willing to make a serious effort to reconcile current strict federal prohibition of marijuana with the realities of new marketplaces for legal medical and recreational use in many States. It is encouraging to see some movement on a federal level to institute what many marijuana advocates have claimed for years would be the resultant boon to U.S. revenue from the legalization and decriminalization of marijuana. [Read more…]