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Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office. He is the author of the book “Carving Out the Rule of Law: The History of the United States Attorney’s Office in Eastern Michigan 1815–2008″.

President Donald Trump’s Early Influence on the Criminal Justice System and Law Enforcement

Donald Trump, via Wikipedia

Donald Trump, via Wikipedia

By Ross Parker
ticklethewire.com

President Trump is a media magnet, for better or worse. Debates on public policy and personal peccadilloes whirl so fast that it seems fair to step back and try to ignore the daily sensations and make a preliminary assessment of his successes and failures in the law enforcement and criminal justice arenas.

Relations with Law Enforcement Agencies

Candidate and now President Trump often voices an intention of becoming a supporter and partner with police and federal agents. He vocally repeats the warnings from the War on Drugs contingent and openly chose their tenets over Black Lives Matter. He promises more support, financial, executive, and legislative, and he declares new policies and priorities.

The jury seems to still be out on whether these promises are going to be implemented but law enforcement seemed at least open-minded after their general ambivalence for Obama. But Trump’s “buddy” plan took a serious hit in the last few days when he abruptly fired the well respected head of the largest and most influential law agency in the nation, if not the world.

Last week Trump fired James Comey, the Director of the FBI. In the Bureau’s almost 100 year history this had occurred only twice previously:  President Richard Nixon fired the director while the nation was in the throes of Watergate, and President Bill Clinton fired William Sessions in 1993, shortly after Clinton took office.

Although Comey had drawn some criticism by his disclosures a few days before the election that the Bureau was re-opening and then re-closing the investigation on candidate Hillary Clinton, most thought that, however misguided, the comments were not intended to affect the election or have any other ill intent. Whether they did or did not doom her election hopes is another subject.

Contrary to Trump’s protestations, Comey was and continues to be highly regarded by other law enforcement agents, Congress, and the public at large. With the men and women of the FBI, the issue is personal.

It was also the way it was done, its peremptory quality, the prevarication and confusion among Trump, his staff and spokespersons. The Director found out he’d been terminated on a TV news program. It was the kind of Amateur Hour we have come to expect from this Administration.

Ironically ,Trump’s firing resulted in the disclosure of his meddling/obstruction of the investigation of fired National Security Coordinator Michel Flynn. Trump’s remarks to Comey about closing the Flynn investigation would probably never have seen the light of day absent the firing. Not the first time Trump stepped on an important part of his anatomy.

The flare-up of violent crime statistics, concern about increasing assaults on police, general ambivalence toward Obama policies—all of these factors provided an atmosphere in which President Trump could have cemented relations with law enforcement. But the Comey affair and Trump’s meddling in several other DOJ cases and policies seem to have made this a lost opportunity for him to build an alliance with law enforcement.

Supreme Court and the Judiciary

Another potentially positive area was in his judicial appointments. From a law enforcement perspective, if the measure of the value of Justices and judges is their tendency to rule for the government in criminal cases, then the selection of Justice Gorsuch to fill Justice’s Scalia’s seat was a big win for Trump.

But the win came at a price. The absence of a Justice for a year meant that the Court was stuck in third gear and could not resolve some important questions which have split the lower courts.

Then, too, the politicization of the selection process and the abandonment of the 60 vote rule in the Senate will impact the process negatively for decades. The emphasis on broad-based excellence has been de-emphasized a notch for a candidate’s predicted loyalty on a few hot-button issues. The fact that we appeared to have gotten a Justice of excellence and integrity in Justice Gorsuch does not entirely absolve the methods and intentions of the selection process.

Moreover, the general dysfunction of both Congress and the White house has, thus far, left hundreds of vacancies for new federal judges and U.S. Attorneys unfilled.

Finally, going back to the original rubric for judging success in this category, there is undoubtedly an undetermined segment of the law enforcement community and the population at large which holds that there is more to assessing success in choosing judges than their predictability for government-favored rulings. Excellence, independence, wisdom, legal acumen, and courage—have these attributes been de-valued by Trump and his architects for criminal justice?

Criminal Justice Reform

For the first time in several decades there appeared to be broad-based, bipartisan support for making progressive changes to the criminal justice system. From Senator Rand to Congressman John Conyers (a wide spectrum indeed), consensus was building toward reform.

Rep. John Conyers

Rep. John Conyers

But the President and his Attorney General Jeff Sessions are not only opposed to this movement, they apparently want to roll back policy to the get-tough rhetoric of two and three decades ago. AUSAs are directed to seek the most severe charges and sentences in drug and gun cases. Mandatory minimums are back in favor. Prosecutions of marijuana cases in recreational use states have been threatened.

It’s Nixon’s War on Drugs Redux. Even those of us who have consistently opposed marijuana legalizations shudder at the prospect now at sending DEA agents and AUSAs to put the genie back in the bottle.

Trump/Sessions DOJ has also done a 180 on civil rights investigations of local police departments, even to re-examining all existing consent decrees. Many police will welcome the end to what they consider to be obsessive micro-management from Washington. Others, however, found DOJ’s participation to serve as a pragmatic buffer between community groups and the police. Communities like Baltimore considered the decree to be the foundation for a strengthened department.

Trump’s description of a terrible crime wave gripping America paints a bleak picture, particularly in the cities. Some think this rhetoric denigrates the hard work by law enforcement which had resulted in a 42% decrease crime statistics. Still, most agree that violent crime, especially since 2015, continues to be a stubborn and dangerous problem, along with the opioid epidemic. A fresh approach and commitment would be a real achievement by President Trump. So far, however, we have seen only fear mongering and proposals like The Wall and widespread deportations.

The Law Enforcement Leaders, made up of over 200 police chiefs, have made five policy recommendations to the President and Attorney General:

1.    Focus on violent crime with DOJ’s priorities and resources.

2.    Reduce unnecessary time behind bars. Lock up the worst.

3.    More resources for mental health and drug treatment, which cannot be addressed successfully in jail.

4.    Build up Community Policing with local programs and information clearinghouses.

5.    Reduce recidivism by supporting prison education and treatment programs, residential re-entry centers, and home confinement for those nearing release.

President Trump seems inclined to support the first and part of the third proposals (opioid treatment). His present plan seems inconsistent with the second and fourth, although they would be worthwhile topics for the task force to reduce crime which he has created.

Law Enforcement Budgets

The quickest way to a law enforcement agency’s heart is through its wallet. Two months ago Trump announced that his first budget would include significant increases in law enforcement spending. That, of course, would be welcome news for agencies whose increased costs have not been met by increased budgets. Plus the Administration’s announced expanded expectations will be costly.

The problem is that any budget increases will be met by the pressure to cut spending to justify a tax reduction. So this is another one in the wait-and-see category.

Bureau of Prisons

President Obama cut the federal prison population by about 10% through an unprecedented use of his clemency power, reduced Sentencing Guidelines and legislative changes in sentencing. The result caused the prison overpopulation pressure to ease and almost ended the use of “private prisons.”

None of these policies seem at all likely in the Trump Administration, whose plans will fill the prisons up again and bring back budget and infrastructure concerns. Sessions’ direction for tougher charging and sentencing policies will accelerate this trend. Plus he has announced an intention to reverse Obama’s executive order to close private prisons.

All of this portends a significant increase in the BOP budget. Some, perhaps many, in law enforcement will applaud this result. However, the discovery by criminal justice “reformers” in Congress that these policies have a price tag may well put them in opposition to the President’s plan to lock more miscreants up.

So what’s the verdict on Trump’s early influence on the criminal justice system? Like the rest of his actions, it depends on the point of view of the listener. But, over all, it appears to be something which once held promise but seems to be trending downward. Beyond content and result is the method. There seems to be only limited thoughtful planning and consultation with career experts.

Like much of Trump’s policy pronouncements, it has a shoot-from-the-lip quality.

___________________________________________________________

This is my 100th column for Ticklethewire, a milestone of note only to writers who are “counters.” Whatever the future holds, I want to thank Allan Lengel for his help and indulgence, and to the readers who give me feedback, especially the ones who care enough to disagree.


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In the Age of Social Media, The Legal Duty to Report Crime

By Ross Parker
ticklethewire.com

Over the weekend NBC News and other media reported a story of the sexual assault of a 15-year-old girl in Chicago by a group of juvenile boys. The painful media “angle” of the report was that the offenders had broadcast the brutal assault to 40 Facebook viewers, none of whom had reported the crime to police.

The Chicago Police Chief stated that he was uncertain whether any of the viewers would be charged criminally. He said that he was “disgusted” by their inaction and added, “Where are we going in society?”

The incident follows another one in Chicago in which 4 people taunted and beat a mentally disabled man and broadcast the crime, also by Facebook.

The most recent Chicago case occurred 53 years, almost to the day, after the notorious rape and murder of Catherine “Kitty” Genovese in March 1964, while observers saw and heard the brutal stabbing and her cries for help. A sensationalized New York Times article, two weeks after the murder, reported that 38 people had watched the murder and did nothing about it.

The article shocked readers across the country and came to represent a widespread “truth” about apathy in the big cities, the breakdown of the values of the 1950s, and the social anxieties of the years which followed.

Many of us became familiar with the Genovese case in our Psych 101 and Sociology textbooks in college, under the title “Bystander Effect” or “Bystander Syndrome,” as the supposed tendency of large groups of people who witness crimes to refuse either to come to the aid of the victim or to call the police. Dozens of movies, TV shows, books, and songs decried the “Bad Samaritan” tendency of people who predominated in modern life.

The problem with the story and its widespread consequences was that most of the reported “facts” were not true. Fifty years later studies showed that the events had been grossly exaggerated and inaccurate in many respects, especially the overstated number of  witnesses (actually probably 5 or 6, some of whom did call the police and try to help the victim). Only one man indicated that he had seen and heard  the assault and “did not want to get involved.”

Ironically the case did have some positive effects, the most obvious of which was the creation of the 911 police emergency system. And there have been other developments, good and bad, which have resulted from the popular reaction to the Genovese case.

But the media and police reports about failure of witnesses to come forward and assist in investigations have continued regularly. Which raises the question, what are the legal implications of the failure of a witness to report a crime?

It’s Misprison

The deliberate concealment of a person’s knowledge of a crime by a non-participant is called misprision. It was first recognized as a common law misdemeanor in 16th Century England and over the centuries it spread to the colonies.

Eventually statutes defining misprision replaced the common law. In the federal criminal code misprision is in 18 USC Sec. 4 (Whoever with knowledge of the commission of a felony conceals it and does not as soon as possible make it known to a person of authority is punishable by a potential $250,000 fine and a maximum of 3 years in prison.)

However, the general principle is that there is no legal duty to report crimes. Mere silence does not constitute criminal concealment. Misprision requires as elements a knowing and an affirmative act of concealment of the crime.

Although misprision has been a crime in the U.S. since 1789, it continues to be misunderstood and rarely employed by prosecutors. It is often confused with the crimes of acting as an accessory after the fact and obstruction of justice, each of which focuses on giving aid to a criminal.

Commonwealth v. Lopes (Mass. 1945) illustrates some of the difficulty with the statute as well as its legal distinctions with other offenses. There the defendant failed to report the discovery of a child’s body because to do so would expose his having an affair. The conviction was reversed because the defendant’s intent was to protect his exposure from a crime (adultery) not to conceal the discovered crime. But compare the case with US v. Baumgartner (6th Cir.2014)(misprision conviction upheld where a Tennessee judge lied to prosecutors and another judge to protect one of his former criminal defendants with whom he was having an affair and receiving drugs).

There are important exceptions to the general rule that failure to report a crime (without an act of concealment) is not a crime. These have been enacted by the states in particular situations. A few states (like Texas), for example, penalize the failure to report an offense resulting in a serious injury or death. Also there are “mandatory reporters,” such as parents, teachers, doctors and ministers, who are required to report certain crimes. Vets are required in some states to report animal abuse, and photo processers must report child pornography photos or videos. Some states make it criminal for a nurse or nursing home staff not to report abuse of the elderly or disabled. Additionally, there are “mandatory reporting crimes,” the most common of which is the failure to report child abuse.

Because even these exceptions are rarely prosecuted, few courts have tested their limits. What if the witness has a recognized legal privilege not to reveal a confidence? What if reporting could have 5th Amendment implications?

What if a judge, prosecutor, or federal agent receives information of a crime in another jurisdiction by a cooperating witness? Is he or she bound to disclose the information to the appropriate authorities in view of 28 USC Sec. 1361’s compulsion for officers of the US to perform their legal duty?

As the Bystander Syndrome encounters the social media obsession in the 21st Century, the duty to report crimes to law enforcement will continue to be more of an ethical and moral issue, as well as an important public policy subject.

Rap songs and t-shirts with inscriptions like “Snitches Get Stitches” will continue to challenge law enforcement’s need for pubic cooperation in order for officers and agents to protect and serve. The use of statutes like misprision will accomplish little to satisfy this need.

 


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Neil Gorsuch’s Participation In Supreme Court Could Make a Difference, Most Likely In favor of Protecting Officers

Judge Neil Gorsuch

Judge Neil Gorsuch

By Ross Parker
ticklethewire.com

The muddied area of the law in civil actions against police officers involved in a shooting is one where Justice Neil Gorsuch’s participation and vote could make a difference, most likely in favor of protecting the officers. The Supreme Court heard argument last week in County of Los Angeles v. Mendez, a Section 1983 action against the county and two LA Sheriff’s Deputies.

It is an old legal adage that bad facts make bad law. From a law enforcement perspective, the case presents that kind of context.

First the present atmosphere surrounding police shootings, particularly of minority members, particularly where a rule or policy violation is present,  is very unforgiving of split second decisions by police officers in the heat of situations reasonably perceived to be dangerous.  See The War on Cops by Heather Mac Donald. One publication has described the case as involving the question if the police can “troll you and then shoot you.”

Second the atmosphere was especially stacked where the victim was, after the fact, found to be an innocent who suffered serious injuries.

The deputies were seeking a parole violator in 2010 when they knocked and announced their identity at a house in Los Angeles and then entered and searched it. In violation of the 4th Amendment, they lacked either an arrest or search warrant. Finding no one, two of them were sent to check a dilapidated shack in the backyard behind the house. Without announcing their identity or purpose, they opened the door with guns drawn. Not knowing who they were, Mendez picked up a BB gun he used to kill rats but did not point it at the officers. The deputies opened fire with 15 shots wounding Mendez and his pregnant girlfriend. Mendez later had to have his leg amputated because of his injuries.

The “Provocation” Rule

At the conclusion of the federal bench trial, the judge sustained liability and awarded the plantiffs $4 million in damages. The 9th Circuit Court of Appeals upheld the judgment under the alternative theories that the officers had provoked the threatening situation and that their constitutional violation, under the circumstances, was the proximate cause of the excessive force causing the injuries.

The “provocation” rule is opposed by law enforcement because it ignores principles of qualified immunity and focuses on events prior to the reasonableness of the officers’ action at the time of the shooting. Such a rule would, they argue, encourage police to hesitate and thus result in increased danger to both them and the subjects. The legal analysis has been widely discredited by other appellate courts.

Plaintiffs argue that it is unfair to shield officers from liability for unreasonably dangerous situations which they created or contributed to by their own actions.

The wide gap in views on what legal principles and analysis should be employed by the parties and lower courts was reflected by the apparent attitudes by the 8 Justices during oral argument last week. Even the fundamentals of the law in this area are confusingly uncertain.

The case could very well end up in a 4-4 tie between the Justices who support a finding that an unconstitutional entry satisfied proximate cause for the injury (likely Kagan, Sotomayor, Breyer, and Ginsburg)  and those who could discern no proximate cause between any constitutional violation and the result (likely Roberts, Alito, Thomas and Kennedy). A tie would uphold the 9th Circuit’s affirmance of liability and damages. Of course predicting individual votes in a murky area of the law is a perilous course taken only by the most stalwart of columnists (who have nothing to lose).

Ominously the 13 Amicus Curiae briefs are split almost equally divided in their support of the two sides of the case.

Almost Justice Gorsuch’s disciplined and conservative approach could bring clarity in this area. Of course it is likely to be a clarity very unhelpful to the victims of police shootings.


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The Frightening Opiate Tales From The Emergency Room

url

By Ross Parker
ticklethewire.com

The mind numbing opiate epidemic is not news, but the number of overdose deaths keeps climbing, and DEA agents say that we are still on the uphill side of the worst drug crisis in U. S. history. Until the opiate epidemic invades you or your family or friends, it is easy to underestimate the intransigence of the scourge.

Emergency room physicians and nurses have to cope with the unending tide of hopeless and desperate patients who are wheeled into the ER every day.  These are stories from a typical urban hospital where all classes, ages and races end up unconscious on their front door step. The fact that the stories are so unexceptional illustrates the extent to which the drug has a death grip on the country.

One ER doc relates that at the beginning of his twelve-hour shift a young woman comes in close to death in an opiate overdose. The medical team uses their best efforts to revive her, and they are successful. The doctor and a nurse both advise her strongly that the next incident may not have a good outcome and that she needs to remain in the hospital for a full medical work-up by an internist as well as counseling and treatment. But she signs herself out of the hospital AMA (Against Medical Advice) before he or anyone else in the hospital can do anything to prevent her from leaving.

The ER doc’s shift proceeds with other patients. An hour before the shift ends, the same young woman is wheeled into the hospital with her second overdose. Again she is revived. Physicians are trained to make no moral judgments about their patients’ lifestyles, but frustration pervades the atmosphere of the facility. What’s the point?

At a different hospital an ER physician tells a story that is going around ERs about a practice of opiate addicts driving to the hospital parking lot, leaving the car in drive with their foot on the brake and taking their drug of choice. If they remain conscious during the “high,” they keep that foot on the brake until they can drive away to another destination. If they overdose and lapse into unconsciousness, their foot slips off the brake, and the car crashes into something stationary, another car, a wall or such. Hospital security then finds the overdosed driver and rushes him or her into the ER for emergency treatment.

How Much Is Too Much?

A third doctor relates a post-overdose conversation she had with a chronic user. The problem, the user explained, is that the most euphoric effect comes only when he is close to slipping into unconsciousness. So users, at least the ones who want to live, must gauge what amount will reach this point without unintentionally going too far. Could the doc give him a little advice on this problem?

Each drug, used legally or not, has a Therapeutic Toxic Ratio or Therapeutic Index, which is a comparison of the amount of drug that causes the effect sought to the amount that causes toxicity. There is a safety continuum between effectiveness and a lethal side effect. The user who was seeking advice was saying that the best high is one which occurs as close to the toxicity point as possible without going too close to a lethal overdose.

The problem with this over simplistic analysis is that there are so many factors and unknowns in the context of illegal drugs that predicting this point is impossible. Using recreational drugs doesn’t happen in the hospital laboratory. The unknown mixture of different drugs (e.g., heroin and fentanyl) prevents this assessment by a user. Also the strength and purity of the drug(s), user tolerance, and contaminants affect the reaction to the drug and change the safety continuum.

So, even if the doctor was inclined to have this discussion, it would have been impossible to do so.  Instead the answer was that any time the user took a drug he was spinning a deadly roulette wheel. The unknown factors were the ones which could kill him or her. Even the same dose of a single drug can be effective one time and kill the user another time. The practice is inherently and unpredictably dangerous.

These are stories of a public emergency sliding toward a cataclysm, one not being addressed by policymakers and politicians. Appreciating its grim tenacity is only the first step to finding an answer to the epidemic.


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Supreme Court Strengthens Qualified Immunity for Law Enforcement Officers’ Use of Deadly Force

By Ross Parker
ticklethewire.com

It was a tough year for law enforcement officers. Line of duty deaths, especially intentional killings of police, were up dramatically. Several categories of violent crime, including homicides, rose significantly after two decades of steady decline in crime statistics. Recruitment of new officers is becoming difficult, and officers confronting deadly situations are justifiably wary about the public (and media) second-guessing life or death decisions that had to be made under pressure within seconds.

Heather MacDonald, in her recent book The War On Cops, blames these developments on an anti-law enforcement movement led by groups like Black Lives Matter, accentuated by media attention, and facilitated by the policies of the Obama Administration. Whether you buy all of her conclusions, she does make a persuasive case that the current atmosphere in some segments of the public about law enforcement has resulted in officers being less aggressive in discretionary policing and that is a factor in a new crime wave, especially in the nation’s cities.

Into this troubling and dangerous situation, a potential boost in law enforcement confidence came this month from an unlikely source, a per curiam opinion by the U.S. Supreme Court.

Per curiam (Latin: by the Court) decisions are judgments by appellate courts as a whole in which no particular judge or Justice is identified as the author. In the Supreme Court per curiam opinions are almost always unanimous and usually represent brief rulings on non-controversial subjects. They tend to be short. They seldom set an important precedent or alter the rule of law.

But there are exceptions. In 1972 the per curiam opinion by the Court in Furman v. Georgia turned capital punishment upside down when it struck down every death penalty law and practice in the country as arbitrary and capricious under the 8th Amendment. It took four years for the states to re-institute death penalty statutes and, in many ways, the case began to diminish the role of the supreme penalty which continues to this day.

Bush v. Gore

In Bush v. Gore (2000) the Court issued a per curiam opinion in one of the most controversial cases in the Court’s history. The Court upheld the razor-thin Florida vote which gave the presidency to George Bush by a single electoral vote over Al Gore. The 5-4 vote followed party lines with the Republican appointed Justices in the majority, but the ruling was brief and unauthored.  Harvard Professor Alan Dershowitz called it the “single most corrupt decision in Supreme Court history,” but others thought it was a profile in courage which preserved the republic.

new_mexico_state_police

Earlier this month the Court decided another per curiam opinion which has gotten much less attention but which could have profound implications, especially to law enforcement officers on the front line. White v. Pauly was an appeal from a civil ruling by a federal district court against New Mexico State Police Officer Ray White, who had shot and killed Samuel Pauley in a police confrontation outside of Santa Fe.

Witnesses had called 911 to report Pauley as a drunk driver. Two police officers went to his residence where he lived with his brother Daniel Pauly in a secluded area to talk with Pauly. They ordered him to open the door.  It was asserted in the complaint that the brothers had not heard the officers identify themselves. The Paulys got their firearms.

A few minutes after the initial confrontation, Officer White arrived at the scene outside of the Pauly residence. The Paulys yelled that they had guns and Daniel fired two shotgun blasts outside the back door. Samuel stuck his handgun outside a window in the front of the house and pointed it in the officers’ direction. All three of the officers took cover, White behind a stone wall. One of the initial two officers fired his gun at Pauly and missed. Officer White fired and killed Samuel Pauly.

In the civil suit the three officers asserted qualified immunity, But the plaintiffs responded that the defense was not available since court opinions in other circumstances had stated that a warning was required before the use of deadly force even under the threat of serious harm. Officer White could not reasonably assume that this warning had taken place before his arrival. The district court agreed and the 10th Circuit Court of Appeals affirmed the ruling and ordered the case to go to trial. Officer White appealed to the Supreme Court.

The Court unanimously vacated this decision without oral argument in a brief per curiam opinion. Officer White had violated no clearly established law requiring a police officer facing an occupant pointing a firearm at him to identify himself and shout a warning before firing his weapon.

The Court pointed out that qualified immunity for law enforcement officers is important to society as a whole. Pre-existing law must give them fair and clear notice of impermissible conduct in order to invalidate the assertion of qualified immunity. Officer White’s conduct under the circumstances, especially his late arrival after the other officers had engaged the subjects, did not violate clearly established law. He could reasonably conclude in an ongoing police action that proper procedures had already been followed.

The case has been criticized as giving police a “license to kill.” But Supreme Court Justices are aware of the issues of the day. They watch TV. Maybe they are sending a signal that the courts should not second-guess law enforcement officers who have to make split second decisions on the use of deadly force by weakening qualified immunity.

Or perhaps they are just tired of the judiciary being asked to make social policy on confrontations between police and potentially dangerous subjects in the context of law suits against police.

Or maybe, like most garden variety per curiam opinions, the case represents a narrow ruling on a unique set of facts with little or no policy-making implications.


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Two New Drugs Targeted in Opioid Epidemic Battle

Kratom leaf

Kratom leaf

By Ross Parker
ticklethewire.com

The fight against the opioid epidemic has targeted two new recreational drugs being used on the streets as substitutes for heroin and fentanyl. Both U-4700 and Kratom have been on DEA’s radar screen, as well as US Poison Control Centers, in the last few months because of their increased use in 2016, their potential for abuse and health dangers.

U-4700, a synthetic opioid, is known on the streets as “44,” and “pink” and until recently has been easily available on the internet. It has been reported that it contributed to the death of rock star Prince last summer. It was originally developed for use in the 1970s as an analgesic, but it has many times the strength of morphine.

Last month DEA classified it under Schedule I as presenting an imminent hazard to the public safety.

Kratom, known on the streets as “Ketum,” thang” and other names, is actually an herb that has been used as a recreational drug for several years. Poison Center calls about overdoses have greatly increased this past year. The drug continues to be freely available on the internet and has no age restrictions on purchasing.

However, Kratom has increasingly been found in combinations with opioids in cases of overdoses, and it can independently produce symptoms such as tachycardia, nausea, and hypertension.

DEA’s journey toward its regulation in the last few months presents an interesting study in the agency’s frustrations over getting drugs that are contributing to the opioid epidemic off the streets. DEA originally announced its intention to classify it under Schedule I, but physicians and scientists complained to Congressmen that it has legitimate medical value. These members urged DEA to delay the ban for a period of public comment, which is presently under way. DEA placed it on the Drugs of Concern List and is continuing to consider its appropriate classification.

This report relied on articles from Medscape Internal Medicine (12/9/16), Forbes (8/22/16), and the Journal of the American Osteopathic Association (12/16).


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The Effect of Donald Trump’s Supreme Court Picks on Criminal Law Cases

supreme_court_us_2010

By Ross Parker
ticklethewire.com

One out of five voters said that the Supreme Court was the most important issue of the Presidential campaign. They voted overwhelmingly for Donald Trump. The President-elect has published two lists of about 20 possibilities for his Supreme Court appointees.

“Appointees” plural since there is one vacancy and three of the eight Justices are over or near 80 years old. Two are considered in the “liberal” wing (Ginsburg, Breyer) and one is a swing vote who sometimes votes with that group (Kennedy).

Since the pool of Trump picks are characterized as “conservative” or “libertarian,” the speculation by the pundits is that the effect of the appointments will be immediate and a strong re-direction to the right. Not that many of us put much faith in the predictions of the pundits and pollsters after the election. But in this case they are probably right. At least as to the hot-button issues like abortion, immigration, climate change, LGBTQ, gun rights, and affirmative action.

But what about cases involving criminal and law enforcement issues? This requires an assessment of how the current 8 Justices on these cases have voted.

In the 2015-2016 term, the Court handed down opinions in 28 cases involving these issues out of 81total cases. Categorizing each Justice’s vote as Pro-Government or Pro-Defendant results in the following order, from highest percentage of Pro-Government votes to the lowest:

Alito————79%

Thomas——–61%

Kennedy——-61%

Breyer———-57%

Roberts——–57%

Kagan———-54%

Ginsburg——50%

Sotomayor—-36%

Another interesting survey counted the percentage of time that each Justice voted with the majority in criminal cases, as opposed to voting with the dissent, or filing a concurrence with an entirely different rationale than the majority. That list from highest adherence to the majority to the lowest was as follows:

Kennedy——-96%

Roberts——–93%

Kagan———-89%

Ginsburg——86%

Breyer———86%

Alito———–71%

Sotomayor—71%

Thomas——-54%

Before the analyses, the caveats. These 28 cases were from a single term, not the entire history of a Justice’s votes. Some involved just following the Justice’s interpretation of precedent, as opposed to how he or she would have voted if not bound by precedent. Some of the cases were very complex, and there was some subjectivity in a few cases in deciding which box to put each of the votes in. But there is something to be learned from the exercise even with these limitations.

Looking at the Pro-Government listing, the two Justices at the top (Alito and Thomas) are considered to be the most “conservative” on the bench. The two on the bottom are considered to be in the “liberal” wing. But the four in the middle do not follow these labels. The list proceeds: swing vote (Kennedy), liberal (Breyer), conservative (Roberts), liberal (Kagan). Thus in criminal cases at least, the label does not determine the voting pattern for most Justices.

This conclusion is made even more apparent by a look at individual criminal cases even at the top and bottom of this ranking. For example Justice Thomas, rightly considered the dissenter on the bench, either dissented or concurred in the defendant’s favor in six cases, about a quarter of the criminal docket. This may well be because of his libertarian views on cases like those involving Second Amendment right to bear arms or the federal Hobbs Act, which he may perceive to invade states rights. On the other end of the list, Justices Sotomayor and Ginsburg each dissented in favor of the Government in two cases.

On a great many cases, it was difficult to predict how a Justice would vote on criminal cases. Voting groups on each side sometimes involved surprising voting buddies. On the great majority of cases, reading the opinions left the conclusion that the Justices more often voted their views on the applicable law rather than a particular ideology.

Also the overall Government win percentage in criminal cases is 57% to 43% for the defendants. Not too shabby for the guys and gals wearing the white hats. Moreover, in 77% of the time the Justices agree with the opinion of the Court. So the present group has not been a hotbed of rancorous disagreement.

These numbers can be parsed and speculated about in other ways. But back to the original question—how will Trump appointees affect the Court’s criminal and law enforcement-related cases? For the first appointment, to replace Justice Scalia, the answer is probably not much. Justice Scalia regularly, but not always, voted for the government in these cases. And as shown above, most cases are not decided by the ideological label put on each Justice by the media.

The second appointee, and there will be another one for President Trump, will have a greater impact, particularly in categories like abortion, affirmative action, gun rights, business regulation, gay rights, campaign spending, and racial discrimination. However, a Justice’s views can change on the bench and can greatly disappoint the appointing President, like Chief Justice Warren, Justice White, and Justice Souter, to name a few.

In criminal cases, the effect of a second “conservative” like those mentioned by the President-elect will not be as great as these categories, but it will probably move the dial for some future columnist’s analysis toward the Government’s benefit. A more law and order bench, if you will. Justice Brennan, if he stays on the bench, would not be the swing vote. The Chief Justice may well get that label.

One category in criminal cases where such a development may be significant is death penalty cases, where the Court appears to have been sensing the population’s growing doubts about the efficacy and cost effectiveness of the ultimate penalty. Even the few states regularly employing the death penalty seem to be increasingly ambivalent. The recent trend seems to be to decide these cases in ways that lessen the prospect of execution. But that could change with two or more new Justices.

Finally there is, depending on your perspective, another good development in President-elect Trump’s plans. We will no longer be judged by the eastern elite from Harvard and Yale, raised on the coasts, especially New York. The Trump list comes from all over the country and from non-Ivy League law schools, which is good news for those of us who live in the wilderness of “fly over” states and for the lawyers who went to Midwest and southern law schools. Also good news for a more diverse and representative point of view on the highest court in the land.


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Supreme Court’s November Cases and the Continued Search for the Evolving Standards of Decency in Criminal Punishment

Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office.

US_Supreme_Court

By Ross Parker
ticklethewire.com

With only a pair of criminal cases on the Oral Argument docket in November, the Court will primarily focus on civil and administrative cases. One of the criminal cases, Beckler v. United States, involves a question of interest probably only to some prosecutors and judges: whether the career offender sentencing guidelines defining a “crime of violence” warranting a sentence enhancement is unconstitutionally vague. The Court last year invalidated a similar clause (violent felony) in the Armed Career Criminal Act on that ground.

The other case, Moore v. Texas, involves yet another 8th Amendment Cruel and Unusual Punishment issue on the permissible medical standards for intellectual disability regarding a defendant’s fitness for execution.  The case involves another question which will probably not be resolved because of the absence of a Justice to fill Antonin Scalia’s seat. That question is whether long term solitary confinement on death row is itself unconstitutional as cruel and unusual.

In 1980 Bobby James Moore, age 20, shotgunned a grocery clerk to death in a robbery attempt. He was convicted and sentenced to death. Since that time he has spent more than 35 years in solitary confinement in a 60 square foot iron cell for 22 and ½ hours a day. He has no TV or association with other inmates. The medical and psychological effect of this kind of incarceration has been studied extensively, and some of the results show a deterioration ranging from mild mental disability to psychosis. In short some experts consider this to be a modern version of torture.

But can the time expended on repeated postponements caused by the defendant’s own pursuits in the Byzantine appeals process in capital cases be equated with government “torture?”

It is a gruesomely fascinating exercise to trace the evolution of torture as a means to punish. Four thousand years ago the Code of Hammurabi codified punishments for particular crimes. Various penalties were prescribed, including an “eye for an eye,” ripping tongues out for false testimony, and skinning perpetrators alive.

A few centuries later the ancient Hebrews employed crucifixion, being thrown off cliffs, stoning, being burned alive, and being sawn in half. The classical Greeks used the Rack, the Wheel, and an early version of the Iron Maiden as forms of punishment. In their time the Romans imposed punishments of whipping, strappado, and a very inventive one involving being placed in a bag with poisonous snakes and dropped into the water. Trials by ordeal were encouraged by the Roman Catholic Church during the Middle Ages, as well as water boarding and mutilation by various specially designed tools.

During the 1700s almost all forms of torture were abolished in most European countries, but as late as a decade ago Human Rights Watch and the United Nations reported that dozens of countries still use torture as punishment. Today over three dozen nations have abolished the death penalty, but about 60 countries still include the ultimate punishment. Some of them, however, use it sparingly.

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