What is Kratom? A Brief History

After successfully representing a client in a case involving Kratom, we published a blog about it and encouraged people to research the stuff. Chris Bovey with Herba Invest Ltd reached out to us and offered to write a blog about Kratom, explaining a little more about the plant and its history both in uses and in the judicial system in the United States. Here is what he wrote.

DEA in historic reversal of emergency scheduling of kratom

In late 2016 the DEA announced that it would ban the Southeast Asian herb kratom under Schedule 1 of the Controlled Substances Act. While the agency does this frequently, this time there was a storm of protest from the scientific community, public, and even two Congressmen. This led to a withdrawal of plans to ban kratom in the United States, the first time the DEA has ever backed down on such a procedure.

What is kratom?

Kratom is a Southeast Asian herb that has been used for millennia by indigenous people for a variety of reasons including as an anti-inflammatory, a pain killer and a method of dealing with the effects of opiate addiction. It can also give a bit of a ‘buzz’ so is an enjoyable way of dealing with one’s pain or suffering.

Kratom has been available in the US for quite a few years and is available online, from smoke shops and marijuana dispensaries. In addition to the main medical benefits that people use it for, the active ingredients in kratom have been shown to be good in face creams and haircare.

The DEA’s case

The DEA is able to ban substances under powers where it perceives have “no currently accepted medical use and a high potential for abuse.” Schedule 1 drugs are those that in the DEA’s view have no medicinal value. The trouble with kratom is that the herb is largely used for medical purposes and is relatively rarely used as a way to get high.

Normally the DEA bans substances and there is little in the way of complaint from the public at large. Under the emergency scheduling powers the agency has to assert the substance’s history and current pattern of abuse; the scope, duration, and significance of abuse; and what, if any, risk there is to the public health. After that there is a two year assessment period where the DEA liaises with other government agencies to assess the real risks and then, normally, the substance is permanently listed as a Schedule 1 drug.

In this case the DEA stated it would place, “the main active constituents of the plant kratom, into schedule I pursuant to the temporary scheduling provisions of the Controlled Substances Act. This action is based on a finding by the Administrator that the placement of these opioids into schedule I of the Controlled Substances Act is necessary to avoid an imminent hazard to the public safety.”

 

Emergency scheduling is only available for substances that have no medicinal use whatsoever, and even scientists are banned from using it for their research without a highly bureaucratic licensing process. Where a substance needs controlling but has medicinal value, the DEA has no such powers. Instead it needs to go through a process that takes around two years of proper scientific evaluation. Schedule IV for example has been classified for certain substances that are of proven medicinal value but have a low but real potential for abuse. Recently the dieting pill Lorcaserin was given a Schedule IV classification because even though it had proven medical value as a weight loss drug, “doses of lorcaserin caused increases in perceptive measures for “high,” “good drug feelings,” “hallucinations” and “sedation.””

Medical research

Scientists have only recently been researching the effects of kratom on the body. More than half of the papers published on the herb have been published since 2012. It has been found to be an effective painkiller with an interesting side effect. Unlike opiates such as morphine and codeine, kratom actually stimulates the body, meaning that instead of being too whacked out to do much more than lie in bed, the person taking it can get on with their daily lives. It has also been proven to do many of the things it has been used for by the peoples of Southeast Asia – it is good at helping someone come off opiates and has anti-inflammatory properties too.

Public opinion vs DEA

While the administrators of the DEA are somewhat used to clashing with the public over matters such as the Schedule 1 classified marijuana, when the agency went to emergency schedule kratom there was a massive backlash.

“If the DEA gets its way, more people who struggle with addiction will be criminalized,” said Jag Davies, director of communications strategy at the Drug Policy Alliance. “Given the widespread moral, political and scientific consensus that drug use and addiction are best treated as health issues rather than criminal matters, there’s no good reason to criminalize people simply for using kratom – especially considering how much we already know about prohibition’s disproportionate impact on people of color and other marginalized communities.”

Scientists, afraid that they would be banned from exploring the effects of kratom, wrote to the DEA, as did some 30,000 members of the public and even two Senators. For the first time in the DEA’s history it backed down and announced a public consultation period that would end in December 2016. This received thousands of submissions and roll forward to the present day the organisation is considering the public response.

What next?

Those using kratom for whatever reason, be it for personal use or research, are not out of the woods yet. The DEA could still class it as a Schedule 1 drug, and all medical research would be stopped there and then. What is generally believed is that something far more positive will occur: “even if the DEA decides to reassert a limited access to the substance, the intensity of the opposition and unprecedented reversal by the DEA demonstrates a model that advocates of other herbal psychoactive drugs may follow in the future.” In short, should kratom be legalized in whatever form, marijuana will come to the fore again as another herbal remedy that has proven medical benefits that has been unfairly treated by the Federal authorities. Whatever happens from here, it will be very interesting indeed…

 

Kratom…is not a synthetic opiate. So stop calling it that!

We recently had the privilege of working on a “synthetics” case in Nashville involving a plant known as kratom. Our client was charged with selling some five pounds of kratom to an undercover police officer. He was arrested and charged with selling a synthetic opiate, in violation of T.C.A. 39-17-454, which is the the Tennessee analogs (synthetics) statute. The problem is, under the law in Tennessee, Kratom is not illegal (and technically not a synthetic at all).

For something to be considered illegal under the analogue statute, the substance must have a “chemical structure which is a derivative or structural analogue of the chemical structure of a controlled substance.” There is no definition for derivative or structural analogue in the statute, so the common definition applies to these terms. This means that for kratom to be illegal in Tennessee, the chemical or substance, must have been created in a lab (we use this term very loosely). So, our argument is simple, the chemical found in kratom, Mitragyna speciosa, is not a derivative or synthetic of any other chemical (let alone an opiate). It is a naturally occurring chemical compound found in the plant. Therefore, it is not a synthetic opiate or any other type of synthetic. So please, stop calling it that!

Here is the problem, the police don’t know that it isn’t illegal, they will arrest you for possessing it or selling it. The prosecutor’s office, as a whole, doesn’t know it isn’t illegal. They may try to prosecute you for being arrested with it. We were “lucky” to get the prosecutor we did. She agreed that the substance is not illegal and that she couldn’t prosecute our client (of course, this is subject to change once the legislature reviews the law). There is no guarantee that if you are arrested for kratom in Nashville that you will get the same prosecutor (you definitely will not get the same prosecutor if arrested outside Davidson County). But we are confident that we can help you regardless of who is prosecuting. 

So what is Kratom? I suggest looking into it at these links:

American Kratom Association

National Kratom Coalition

 

Caught with Weed

Nashville’s Decriminalization of Marijuana, It’s Not What You Think

So there has been a lot talk about how progressive and wise our city council is for finally decriminalized marijuana. If our city council actually decriminalized marijuana, I would agree, but they didn’t. Not even close. They simply passed a law claiming they were decriminalizing marijuana, but in reality, the law added a new penalty for possession of small amounts of marijuana.

Prior to this law passing, when someone was caught with small amounts of marijuana, they were issued a citation and given a date to come to court. When they did, their attorney could usually have the case dismissed after they did some community service or took a drug class. Meaning NO CRIMINAL RECORD. Now, an officer making a stop has the discretion to issue a criminal citation, with the above outcome being likely, or issuing a civil, non-criminal citation. The problem is, the civil citation results in a paper trail that cannot be expunged. Though it is not a criminal charge, it is still a record of drug possession. To make things worse, there is nothing to stop the officer from issuing both a civil and a criminal citation. Think about that for a second. Now there can be double the punishment or double the revenue generation for the city. I had an officer tell me in court just this week, when discussing this very law, that he is more than willing to write a civil citation for a joint, but he would write a criminal citation for the paper the joint was rolled with. I can only hope that was a joke (either way, we would win that case every single time).

Passing a law claiming to decriminalize marijuana is baby step in the right direction. However, this law and other marijuana laws in this state and our country (with the exception of a few states) have a long way to go.

Stanford Swimmer vs. Vanderbilt

Sentencing in Rape Cases – Stanford Swimmer vs. Vanderbilt Football

The Media has blown up lately regarding the discrepancy between the sentencing of the Vanderbilt football player and Stanford swimmer who both recently received convictions for crimes stemming from a sexual assault on an unconscious person.

People are enraged on both sides of the equation. Implying that skin color played a part.  Why did the black man receive such a larger sentence than the white man? Why would one judge give probation while another gave a 15-25 year sentence to serve at a hundred percent?

Well, let’s start at the beginning. The facts of both cases are nearly identical. However, the law in both cases is completely different. While I am an attorney in Tennessee, I can only imagine the law, as far as sentencing is concerned, in other states is similar.

The jury found the Stanford Swimmer guilty of “intent to commit rape of an intoxicated person,” “penetration of an unconscious person,” and “penetration of an intoxicated person.” This allowed for the judge to issue a sentence based on those charges. The range of punishment I believe he was facing was 3-14 years (The prosecutors in that case were only asking for 6). When sentencing a defendant, there are significant guidelines that a judge should follow. The judge should not be swayed by public opinion or media outcry. The judge’s personal opinion or feelings should not affect their ruling. Simply put, the judge is there to apply the law.

In Tennessee the law is such that the shortest sentence within the range should be the presumptive sentence. Meaning if the range is three to six years then the judge should assume the sentence is three years and only depart from that if certain specific “enhancing factors” are found. The crime itself is not to enhance the punishment as the legislature specifically set the punishment for that crime at the intended  range. Furthermore, in Tennessee the judge is required to consider alternative sentencing in eligible cases. Again, this is the action of the Legislature, not the judge. The Legislature determines which crimes can receive probation and which sentences require a sentence to serve. With these factors considered and no personal opinion, the judge must issue a sentence. The sentence issued to the Stanford swimmer is harsher than minimum, under Tennessee law.

By contrast, the Vanderbilt football player went to trial and the jury convicted him of aggravated rape (The fact that the victim is unconscious enhances a rape Charge in Tennessee, a fact that is again determined by the legislature, not the judge). The range on this charge is 15-25 years at 100% (meaning the defendant must serve the entire sentence without parole). The Judge has no discretion to sentence outside of this range. This Range for this offense is again determined by the legislature, not the judge. The absolute most lenient sentence the judge can issue is 15 years to serve at 100%. To put this in perspective the one judge sentencing 15 years is the lightest punishment allowed by law and the 6 months to serve is harsher than the law requires.

The disconnect in the sentences is not the fault of the Judge in each case but instead, the legislature defining the crime and setting punishment range. There is no question the result is not fair, however the rulings appropriately apply the relevant law. The judges in both cases seem to have applied the law correctly. There can be no allowance within the law for a judge to issue rulings based on personal belief or media attention. The issue is with the law. The Legislature holds within its power the ability to outline punishments for crimes. The judge has no authority to defy the legislature when the law is constitutional, and as of yet, I am unaware to any constitutional challenge to either ruling. Ultimately the public outcry against the judges may be unfounded. Both judges applied their State’s law correctly.  The issue arises from the law and punishment created by the legislature, not by the judge interpreting it.

Nashville Attorneys

Faulty Service May Render Thousands of Orders of Protection Invalid

When someone takes out an order of protection (“order”), the Davidson County Sheriff’s Office (“DCSO”) is responsible for serving the person the order is taken out against (respondent) with a copy of that order. This is called “notice.” Notice of the nature of the case against the person, when and where they can be heard and/or fight the case. Notice is vital to our constitutionally protected Due Process Rights under both the Federal and Tennessee Constitutions. Without proper notice, the court does not have the jurisdiction necessary to make any rulings against the respondent. Tennessee law requires that this service be done in person. (T.C.A. 36-3-605(c)). DCSO serves the orders by phone, which is a clear violation of Tennessee law, or at the very least, does not comply with Tennessee law.

On June 6, 2016 Judge Philip E. Smith, Fourth Circuit, issued an order finding that DCSO’s practice of service by phone renders service insufficient. When service is insufficient, the order and the subsequent violations and criminal charges resulting from those violations may be void. In a footnote, Judge Smith wrote:

“The Court is concerned that if this method of service of process is the current policy of the Davidson County Sheriff’s office, the courts of the Twentieth Judicial district may be entering Orders of Protection against respondents in violation of their due process rights. Additionally, because of the insufficiency of service of process personal jurisdiction would not be properly conferred upon the court resulting in many of the orders of protection being void. While Orders of Protection are civil in nature, violations can be tried by criminal contempt or by a violation warrant. If the Court is in fact correct in its analysis regarding the Sheriff’s Office Current method of service, then this Court is fearful that hundreds, if not thousands, of orders of protection and the corresponding criminal convictions thereon could be void as the courts never obtained personal jurisdiction over the respondent.” Footnote 1.

This order could invalidate thousands of orders of protection. If you or someone you know was served with an order of protection, violated that order of protection, and were convicted of criminal offenses due to those violations; you may be able to have those charges removed from your record. If you are currently dealing with criminal charges due to an order of protection, you may have a defense against the order and all the violations.

If you think this might apply to you, or someone you know, contact the Law Offices of Lords and Cate at 615-418-9814 or by email.

St. Patrick's Day Beer

10 Tips For Avoiding a DUI this St. Patty’s Day in Nashville TN

With St. Patty’s day right around the corner everyone can expect at least three things, people dressed in green, excessive drinking, and DUIs. The Law Offices of Lords and Cate wants everyone to enjoy the celebration responsibly and avoid jail. Here are 10 tips for avoiding a DUI.

  1. Don’t drink and drive.

The easiest way to avoid a DUI is to simply not drink and drive. Have a designated drive. If you don’t have a designated driver, call a cab, or in some cases the sheriff’s office will be offering sober rides at no cost. Every year there is a “sober ride” program in Nashville Tennessee, before going out look it up, save the number, and use it before getting behind the wheel.

  1. If you make the wise decision to sleep it off, hide your keys outside the vehicle.

If you decide to sleep it off in your car, make sure that the car is not running and the keys are hidden outside the vehicle. Get in the back seat; don’t sleep in the front seats. In Tennessee, you can be prosecuted for DUI if you are in physical control of the vehicle; this has been interpreted to mean the ability to control use and non-use (aka. drive the vehicle if you wanted to). If you are caught in the back seat asleep without the keys anywhere in the vehicle, you have a very good defense.

Oh, and don’t tell the officer that you know where the keys are. Tell the officer that you have no idea where they are, or that you lost them somewhere that night and you couldn’t find them.

  1. Don’t drink on an empty stomach.

Drinking on an empty stomach will increase your likelihood of impairment. Make sure that you eat a meal while you are drinking, and be careful not to drink too much.

  1. Check your license plate light, taillights, break lights, blinkers, and headlights.

Police officers will be looking for any reason whatsoever to pull you over. Taking the time to ensure that all your lights are working will reduce your risk of being stopped.

Also, make sure that your registration is up to date, your license is valid, and you have a current insurance card.

  1. Obey every traffic law.

This means don’t drink and drive, but since you’re going to do it anyway; use your blinker when making a turn, obey the speed limit, no rolling stops, and keep it between the lines.

  1. Check the local paper and local news websites for sobriety checkpoints.

It is extremely common for police to put up sobriety checkpoints. The thing about these checkpoints is that they have to be announced. You can look up the checkpoint’s location online, in the local paper, or just call the police department and ask.

Though checkpoints seem like a clear violation of your right to privacy, the U.S. Supreme Court and the Tennessee Supreme Court have found that they are constitutional for the single purpose of combating drunk driving. There are, however, some serious restrictions on these checkpoints so if you get arrested at one, you might have a defense.

  1. Stay off your phones.

Being on your phone is a sure way to get the attention of police officers and likely to get you pulled over. Police officers can pull you over for simply looking at your phone. Put it down, turn it off if you have to, but whatever you do don’t have it in your hand while driving. You are already putting other people at risk; there is no need to multiply that risk by playing on your phone while driving.

  1. Don’t let someone who has been drinking drive you home in your car.

If you have been drinking do not give your keys to someone else who has been drinking and let them drive you home. If your driver is pulled over and arrested for DUI you will get charged with a DUI as well. You are better off hiding your keys outside the vehicle and sleeping it off in the back seat.

  1. If you get pulled over (and you know you are above the legal limit of .08).

If you see those blue lights flashing behind you I suggest the following.

  • Roll down your windows while pulling over. This will help get rid of some of the alcohol smell.
  • Start chewing a piece of gum or a mint.
  • Make sure you have your license, registration, and proof of insurance ready when the officer gets to your window.
  • When the officer gets to your window don’t talk to him, don’t look at him, just hand him your documents.
  • Do not answer any of the officer’s questions, just keep looking forward.
  • If the officer instructs you to get out of the vehicle, get out.
  • If the officer instructs you to do any field sobriety tests, just shake your head no.
  • If the officer tells you to take a breathalyzer test, shake your head no.
  • The officer will arrest you and you will be taken to the hospital where they will ask to take your blood, just shake your head no.
  • You will then be booked for DUI and you will be able to make your bond.

If you don’t answer any questions the officer cannot say that you slurred your speech, if you don’t take the breathalyzer or give blood there is no physical evidence that you were intoxicated, if you don’t do the field sobriety tests the officer cannot claim that you were falling all over the place, and if you have your documents ready when the officer gets to your window the officer cannot say that you were fumbling around looking for them.

If you don’t give the police any evidence that you have been drinking, it becomes very difficult for the State to convict you of a DUI. Until February 2014, it was typically a good idea to take the field sobriety tests to show that you were not impaired, but with the recent Tennessee Supreme Court decision State v. Bell, field sobriety tests cannot help you at all. Even if you pass them 100% perfectly, it doesn’t matter.

  1. Call The Law Offices of Lords and Cate.

If you get arrested for DUI you will need representation. Call The Law Offices of Lords and Cate at (615) 418-9814 and let us help you.

We cannot stress enough the importance of having a designated driver. Not only will having a designated driver keep you from getting a DUI but it just might save a life. Be smart this St. Patty’s day, have fun, and get home safely.

Scalia

What Happens If Justice Scalia is not Replaced Before this Session’s Cases are Heard?

As everyone knows, or should know by now, Justice Scalia has passed away, leaving a vacancy in the United States Supreme Court. Regardless of how you felt about the man, he was a legal juggernaut and admired not only by his fellow justices, but also by many conservatives and liberals alike.

There is so much controversy surrounding who will replace Justice Scalia and whether or not the senate will block a nomination until after the presidential election. This blog is not intended to discuss those controversies. Instead, I want to discuss what could happen in the event Justice Scalia is not replaced prior to this session’s cases being heard.

Now that there is a vacancy in the Court, there is a real possibility that the Justices will be split 4 – 4 on cases (especially considering the fact that most controversial cases are decided 5 – 4) in this session. A 4 – 4 split is not impossible when there are 9 judges on the bench either. There are times where a justice will recuse themselves from hearing a case because they may have a conflict with that particular case. In the event that the Court is split, the ruling of the lower court will stand as if the Supreme Court never heard the case at all. However, the opinion of the Supreme Court will be persuasive to all other jurisdictions (all other states not subject to the decisions of the Federal Circuit Courts that originally heard the case). What are the Justices options? Well they can take the chance of voting and having a split, upholding the decision of the lower court, or they can hold the case over until next session in the hopes that Justice Scalia is replaced.

Considering the consequences of a 4 – 4 split, what are the big cases to watch this session? The following are the names of the cases and a link to the Supreme Court of the United States Blog explaining cases in detail:

Fisher v. University of Texas at Austin (Affirmative Action)

Evenwel v. Abbott (One Person, One Vote)

Friedrichs v. California Teachers Association (Public Union Dues)

Whole Women’s Health v. Cole (Abortion)

Whole Women’s Health v. Cole (Abortion)

Another link for great information considering these cases is http://blog.constitutioncenter.org/2016/01/five-supreme-court-cases-to-watch-in-2016/

Foggy Road

TN Supreme Court Extends Police Powers

This past Thursday, February 11th, the Tennessee Supreme Court issued two opinions, State v. Smith (http://www.tncourts.gov/courts/supreme-court/opinions/2016/02/11/state-tennessee-v-linzey-danielle-smith) and State v. Davis (http://www.tncourts.gov/courts/supreme-court/opinions/2016/02/11/state-tennessee-v-william-whitlow-davis-jr) , making it easier for officers to justify a traffic stop.

In State v. Davis, Mr. Davis was observed, by Officer Jerry Massey, crossing the center double yellow line several times. The road Mr. Davis was driving on was a curvy two lane road without shoulders. Officer Massey pulled Mr. Davis over and discovered signs that Mr. Davis was intoxicated. Mr. Davis’s attorney attempted to suppress the evidence of DUI claiming that the Officer did not have reasonable suspicion or probable cause to pull Mr. Davis over. The trial court denied the motion and ultimately Mr. Davis plead guilty to DUI and then challenged the stop by appealing the denial of the suppression motion to the Court of Criminal Appeals. The Court of Criminal Appeals and the Tennessee Supreme Court upheld the trial court’s decision.

I believe that most people would agree that crossing the center yellow line several times is a good reason to be pulled over. As a criminal defense attorney, I can understand the need to investigate a driver who is unable to stay in their lane.

State v. Smith is a different story all together. In State v. Smith, Ms. Smith was observed by Trooper Chuck Achinger drift over towards the shoulder of I-65 as she was entering a big swooping curve. Ms. Smith crossed the fog line with both of her right tires by less than six inches and then as Ms. Smith came out of the curve, she twice corrected and drifted towards the fog line again almost crossing it; all of this occurred in less than half a mile. Then Trooper Achinger followed Ms. Smith for two or more miles, observing no other traffic violations. Trooper Achinger then pulled Ms. Smith over and discovered evidence of DUI. Ms. Smith’s attorney filed a motion to suppress which was denied by the trial court, Ms. Smith plead guilty to DUI, and then appealed the trial court’s ruling. Both the Court of Criminal Appeals and the Tennessee Supreme Court upheld the conviction.

This really doesn’t seem like a terrible ruling. As I stated before, we all want safer roads. The problem that I have is that the Court fails to acknowledge or grasp the power they just gave law enforcement. In State v. Smith, the Court stated that “We emphasize that our decision in this case is not intended to provide law enforcement officers with ‘carte blanche’ to seize motorists every time they see a vehicle cross a fog line.” However, that is exactly what they have done.

Regardless of what the Court believes the effect of their ruling in State v. Smith will be, this ruling gives officers far more power to pull people over to “investigate” traffic infractions. Because now an officer won’t have to worry about an attorney suppressing evidence gathered from an unconstitutional stop.

Of course no officer will ever use this as an excuse for a stop after the stop has resulted in the discovery of other criminal activity. Drive safe everyone because it is now open season for law enforcement.

Lords and Cate Logo

The 10 Day Rule: A Rule Without a Remedy

Almost every time I’m in general sessions (typically 5 days a week) I hear an attorney ask that a case be dismissed because the State has failed to bring a victim/witness to court to testify against the accused. When the judge challenges them, the attorney usually responds stating that “the case has to be dismissed, it’s the law,” or the “Tennessee Constitution requires that the case be dismissed because the State did not bring a victim.” Both statements are, unfortunately, incorrect.

In general session, when the defendant is in custody, the State has 10 days from the date of arrest to get their victim/witness to court to testify in a preliminary hearing; and 30 day when the defendant is on bond. The accepted practice, in Davidson County, is that the case will be dismissed if the State cannot produce a victim/witness within the ten day/thirty day timeframe. But where does this rule come from? The Tennessee Rules of Criminal Procedure, Rule 5 states in part, that: “…The magistrate shall schedule a preliminary examination to be held within ten days if the defendant remains in custody and within thirty days if released from custody…” Tennessee Rules of Criminal Procedure 5(c)(B). This might be the most misunderstood rule in Tennessee criminal law.

Though the Rule seems straight forward, it really isn’t. Defendants are left unsure of what to expect because the Rule does not specify what will happen if the hearing is not scheduled within the timeframe. In Davidson County, this Rule has come to mean that a defendant’s case will be dismissed when the State cannot produce a victim/witness to testify against the accused within ten days of their arrest. And in the case of a defendant who is on bond, the judge will usually dismiss the case against them when the State cannot produce a victim by the third setting (Settlement, trial, and one continuance requested by the State).

But the question is; if the State cannot produce a victim, is a dismissal of the case required? In short, no. However, since the local practice in Nashville is to dismiss the case when there is no victim/witness present, it is a common belief that the law requires the cases to be dismissed. Unfortunately this is not true. The Tennessee Rules of Criminal Procedure mandate that there shall be a preliminary hearing scheduled within the specified ten day/thirty day timeframe, but the Rule is silent on any remedy when a preliminary hearing is not scheduled within the allotted time.

So what does this mean to people accused of a crime? It means that a dismissal is not guaranteed. No matter what people are saying in jail, or what has happened in the past. The judge is not required to dismiss the case.

Hiring an experienced attorney will increase the chances of having a case dismissed when the State cannot bring a victim/witness to court to testify. In order to increase the likelihood of a dismissal, we will check to see if/when subpoenas were served on a victim/witness, we will speak with the District Attorney about their communication with the victim/witness, we will speak with the victim/witness coordinator about their communication with the victim/witness, and we will see how many times the case has been set for hearing. When the judge calls the case during docket call, we will inform the judge of everything we know about the previous settings, and then request a dismissal of failure to prosecute. This isn’t a guaranteed dismissal, but when the attorney is as prepared as we are, with all the information, the likelihood of a dismissal is significantly improved.

Lords and Cate Logo

Does Anyone Even Review this Legislation? Problems in Crime Designations

Here we are, the modern era. We have advances in technology beyond what anyone could imagine. We have medical treatments for anything and everything including successful treatments for cancer, and AIDS. Why can’t the legal system keep up? Right now, despite the fact that we can show that marijuana can treat symptoms from anxiety to pain (and is being used, with amazingly successful results, to get people off heroin and practically every other illicit drug), a single joint in your pocket is the equivalent of beating your wife. Both are A misdemeanors, punishable for up to 11 months and 29 days in jail. The third time someone gets caught with a joint, they will be charged with a felony; beating your wife three times does not result in a felony. The only real difference is that once someone is convicted of domestic assault, they can never own a gun again.

This system cannot stand. We have lumped together people with these indiscriminate, ridiculous laws that do not even come close to encompassing the reality of the crime. You can do the same amount of time for selling a gram of heroine as you can for dragging a person into a back alley and raping them. If you get pulled over, in front of a church, at 3:00am with a half gram of cocaine, you can actually be sentenced to MORE time than you can for raping someone! This disparity cannot be accounted for. I am not saying that one is a crime and one is not, but the shameless way in which the legislation treats them as though they were equivalent is ridiculous. The law as it stands right now, threatening someone with a gun and actually shooting them is the exact same. The truth is that few of these crimes have anything in common.

I have clients who served time for stabbing, shooting, raping, and robbing people. However by far the people who are incarcerated for the longest are all drug related. I understand that drugs can be, and often are a problem. By no means do I deny that drug addiction plagues our society. However, the damage is primarily inflicted on the user, so why when other people commit crimes, which cause clear, direct damage to others, are they punished so much less than a person whose addiction plagues only themselves?

My answer is that legislation is hot button driven. Elected officials, Politicians, only push for legislations that will get them elected and reelected to office. What do the voters want to hear? Felons can’t vote. So it’s easy, rally your voter base around a cause, and make it so that those who suffer under the weight of your legislation cannot vote. That means those with drug addiction problems and drug dealers (who almost exclusively get into dealing because of a personal drug addiction) won’t have the ability to oppose the legislation. People will get caught with drugs, people will commit violence within the home, and people will drive without a license. At some point, someone within the legislature needs to look and say that these and innumerable other offenses need to be assessed, reclassified, and the punishment needs to fit the crime.