Author Archives: Barry Voss

Experience is the answer

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Addict, convict, lawyer.  Those three words define who I have been, in that order.

My addiction began with cigarettes at the age of 7 and ended with shooting cocaine and morphine at the age of 20. In between, I abused cough medicine, gasoline, chemicals, pills and marijuana.  And,  of course, alcohol. Lots of alcohol, including what we called electrified wine. By the end of my drug run the veins in my arms and feet had collapsed. I was a world-class junkie, and had hepatitis from a dirty needle to prove it.

My first documented encounter with the police was at the age of 7. Malicious destruction of property is how it is listed in my juvenile record. It took the police 5 more years before I was rearrested. I was 12 years old. My police run-ins continued until I went to prison, St. Cloud Reformatory for Men.  Before finishing out at St. Cloud, I had passed through Woodview Detention Home numerous times, Boys Totem Town twice, Lino Lakes Diagnostic and Reception Center, Red Wing State Training School for Boys and the St. Paul City Jail. By the time I went to St. Cloud to serve 5 years for burglary of a nightclub, it felt like old-home week. Of the five cell halls at St. Cloud, there wasn’t a cell hall in which I didn’t know a few inmates, including the segregation and isolation units. And it wasn’t long before I was able to track down some shoot-dope and an outfit. But it was in a prison cell-a taste of cold steel- where I finally found redemption, and the ability to conquer the demons that had nearly consumed and destroyed me.

During the past 35 years I have been a criminal defense attorney. However, before I became a member of the bar, I obtained an undergraduate degree in political science  and a law degree. I processed an application for, and obtained, a pardon.  I also completed group therapy and became a counselor and then group leader at Project Newgate.

My approach to addressing clients’ problems, whether as a counselor, group leader or attorney, has been to draw on personal experiences and insight earned the hard way, not from a book. This is also reflected in the posts on my blog.

Simply put, experience is the answer.

 

Teenagers in Criminal Justice System’s Solitary Confinement not a Secret, Dark or Otherwise

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Brian Williams of NBC’s Rock Center featured a disturbing “expose’ ” on Friday, Mar. 22, 2013,  regarding teenagers being isolated from adult inmates while in custody by placing them in solitary confinement.  This occurs when a juvenile is certified to stand trial as an adult. If the juvenile is unable to post bond,  (s)he remains in custody.  As such, (s)he must be kept from adult inmates. Consequently, solitary confinement.

The problem  juveniles pose in pretrial detention is not new. It is endemic when you mix juvenile and adult inmates. This  “problem”  is becoming more prevalent due to the proliferation of certifying juveniles to stand trial as adults. But isolating juveniles, even in juvenile institutions, has been commonplace for those who work in these facilities or had the misfortune of doing time as an inmate.

This is not simply my opinion; it is my experience as a juvenile who bounced from institution  to institution and as a criminal defense attorney for the past thirty-five  years.

From  13 years old  until  20, I was in and out of  lock-up facilities. Beginning in Woodview Detention Home, I was confined a week or more during each stay. Each confinement was in a small room  with a bed and toilet. The rooms were not cells; rather, they had metal doors. Interaction with others was severely limited. If I was not having a meal, I was confined to my room. The lack of interaction with others was stressful; it was meant to be.

I progressed to Boys Totem Town, confined a minimum of  seven  months each of the  three times I was there.  Although BTT did not have isolation rooms during my first two stays, if a juvenile was out of control he was returned to Woodview Detention Home and placed in a secure room, isolated from all  inmates.  During my last trip to BTT the institution had created an isolation room  segregated from the main part of the facility, two floors above where most inmates congregated.  After BTT I was next confined at  Lino Lakes Diagnostic and Reception Center for two months.  If you could not function in the main population, you were placed in isolation in B Building. Once I was “diagnosed” at Lino, I was transferred to Red Wing State Training School for Boys where I spent the next eight months,  the first forty-five  days in Brown lock-up cottage. My room only had a bed. No sink or toilet; no magazines or books. No conversation, no television.   It became a daily struggle to cope with the isolation. I was deteriorating emotionally, psychologically. Two years later I was sentenced to St. Cloud Reformatory for Men for five years. Upon admission  I was placed in B Hall,  a segregated unit where I could see inmates at the far end of the cell block as I peered out through the bars. There was no contact with inmates for the first six weeks.  Out of segregation for approximately thirty  days, I got  drugs, a needle and a fight with a couple of guards. I was confined in segregation for thirty days. The well-used isolation unit was on the top floor of the segregation unit in D Hall.

My experiences as a juvenile and adult inmate  occurred over forty  years ago.  Everybody in the juvenile  and  adult systems knew of the isolation units. There were inmates at Woodview and Red Wing that  I spent time with in isolation  who could not cope with the debilitating, psychological effects  of  confinement. They came out of isolation worse off, more unstable than they were before  isolation.

Segregation,  particularly for high-strung inmates,  is bad. It is one step removed from inmate contact. Isolation is two steps removed from inmate contact. That is, the inmate is segregated from other inmates in isolation.  No conversations.  You can’t even see other inmates.  The atmosphere is subdued; eerily quiet. You feel buried alive.

As an attorney for the past thirty-five  years, I have been aware of isolation units in different facilities. Minnesota’s  Oak Park Heights Prison comes to mind.  Before I became an attorney I was a paralegal representing inmates at disciplinary hearings at Stillwater Prison.  This program, the Legal Advocacy Project, grew out of a consent decree entered into by the Minnesota Department of Corrections after  United States District Court Judge Edward Devitt issued an order condemning the isolation unit in the back-end of C Hall as  cruel and inhumane.

Isolation is draconian when applied to  inmates; it is devastatingly cruel when applied to juveniles, regardless of the reason. There is no justification for it. And it is the height of ignorance to respond to arguments against isolation with the pithy cliche’ “Can’t do the time, don’t do the crime.”

These “corrections”   institutions correct virtually nothing. Isolation corrects nothing.  It is the inmate- not the institution- that corrects the  problem, be it chemical dependency,  lack of  job skills or education.   Teenagers in the criminal justice system’s solitary confinement is a deliberate, calculated  policy decision based on efficiency and indifference. It’s that simple.

Tainted Justice: West Memphis Three Freed From 18 Years in Prison Having Proved Their Innocence. Or Did They?

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In 1993 Damien Echols, Jessie Misskelly and Jason Baldwin were convicted of first- degree murder in the gruesome, and allegedly satanic,  killings of Steven Branch, Christopher Byers and Michael Moore, three 8 year old cub scouts whose bodies were dumped in Robin Hood Hills. Steven Branch and Michael Moore drowned in 2 feet of water; Christopher Byers bled to death and his genitals were mutilated.

Subsequently,  the Arkansas Supreme Court upheld the convictions and sentences. Echols was on death row; Misskelly and Baldwin were serving life sentences.

On August 19, 2011, the three walked out of jail free and, as they contend, innocent. Innocent, after Baldwin and Echols pled guilty to three counts of first-degree murder and Misskelly pled guilty to one count of first-degree murder and two counts of second-degree murder.

How did the West Memphis Three end up back in court after their sentences were upheld only to have their convictions and sentences vacated and plead guilty, yet claim to be innocent?

As a criminal defense attorney in Minnesota for over 30 years, I have been in this situation. It is uncommon, but not rare. Undoubtedly, after the three had their convictions and sentences affirmed on appeal, they sought ” collateral review” of their cases. Collateral review is where the trial court reviews allegations of constitutional or statutory rights, as opposed to “direct review” where the appeals court reviews claims arising from the trial court.

Keep in mind that the trial courts are where trials are held. That is, prosecutors present evidence to the fact finder. The fact finder can be a judge (as in a court trial) or a jury in a jury trial. Once there is a conviction and a sentence has been imposed, then the defendant may appeal. On appeal, the appellate court does not take testimony or retry the case. The appellate court is an error-correcting court.

On appeal there are different standards of review the court applies. The purpose of these standards is to determine how much deference the appellate court gives to the trial court. In other words, if on appeal a defendant claims the trial court erred in admitting certain testimony, or evidence, the appellate court will apply the abuse of discretion standard. Why? Because the trial court heard the testimony and observed the demeanor of the witnesses. These observations are not in the record-and the appellate court does not take testimony on appeal.

Consequently, the trial court is vested with much discretion in admitting testimony. Therefore, the appellate court will require the complaining party on appeal about admission of evidence to establish the trial court abused its discretion in allowing the evidence.

If there were a collateral review, then the defendants created a record for review by the appellate court once their claims were denied. Apparently, the three claimed that certain errors occurred at trial. Baldwin and Echols claimed that the jury committed misconduct by accessing information about Misskelly’s confession that was not introduced in their trial.

All three alleged that their DNA was not present at the crime scene. On appeal, the Arkansas Supreme Court remanded the case to the trial court for  an evidentiary hearing to determine whether the jurors  committed  misconduct and to determine whether the absen of the defendants’ DNA  at the crime scene raised an issue of their innocence.

It is obvious that the attorneys and the judge met before the hearing to  discuss the purpose of the hearing and what each side intended to prove. Based on these discussions it became apparent to all parties that both sides wanted to avoid a new trial and, potentially, either total vindication or a verdict neither side could accept.

This is how the pleas were crafted. Welcome to North Carolina vs. Alford, a 1970 United States Supreme Court decision that permits a defendant to plead guilty to take advantage of a plea offer while claiming to be innocent. I usually utilize this plea procedure where the evidence is substantial, the defendant doesn’t recall what happened and doesn’t want to go to trial.

The critical language in an Alford plea is that the defendant admit that the prosecution has such evidence that there is a substantial liklihood that if a jury were to hear this evidence, they would convict. But the plea also allows the defendant the right to proclaim he is innocent.

This is what Echols, Misskelly and Baldwin did. They technically admitted they were guilty so the judge could impose a sentence, but then said they are innocent. This plea arrangement allows the prosecution to close this case with convictions. It also allows the defendants to hold their heads high while professing their innocence. But it  deprives the defendants from suing the state for wrongful conviction or any other tortious claim they could make.

And the West Memphis Three are on ten years unsupervised probation. No reporting to any probation officer. The purpose of unsupervised probation is to monitor the file. If any one of them is arrested for a new offense or a violation of probation, then the court will be notified and that probationer could be returned to prison for 21 years. 

This quirk in the law allowed all the parties to save face.

But what about Steven Branch? Christopher Byers? Michael Moore? Did the Alford plea deliver  justice? The prosecution says it did. That is why the prosecution is closing its file. There is(are) no other suspect(s) to prosecute.

And what about the West Memphis Three? How many people can say they pled guilty, were sentenced, but still are innocent? Well, actually, there are many who have been convicted, sentenced and still claim they are innocent. The prisons are bursting at the seams with innocent prisoners. Ask them.

And this is why we have the Innocence Project. It took dedication and a sharp focus on the issues to bring about what is perceived by most as justice.

 

 

Have Gun, Will Travel…Fast and Furious to Mexico. Thanks ATF!

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Question: How do convicted felons repeatedly possess and distribute numerous guns without fear of arrest, let alone prosecution?

Answer: By purchasing guns from “straw purchasers,” who purchased the guns from gun dealers cooperating with the Bureau of Alcohol, Tobacco,  Firearms and Explosives (ATF)- an agency within the United States Department of Justice- to permit gun sales without completion of the mandatory background checks or interdiction by agents.

Oops!

Rep. Darrell Issa (R. Calif.), Chairman of the House Committee on Oversight and Government Reform, and Sen. Chuck Grassley (R. Iowa), Ranking Member of the Senate Judiciary Committee,  have been conducting congressional hearings regarding guns being purchased in Phoenix, Arizona, by those who then resell the guns to Mexican drug cartel associates, all with the cooperation of the gun shop owners.

Why would a federal agency, whose mission statement is to keep guns out of the hands of criminals, conduct such an operation? As ATF spins it, the purpose of Operation Fast and Furious was to trace the distribution network to discover who are the end users/possessors of these guns.

The congressional hearings have disclosed that two other federal agencies within the Department of Justice may have been involved: the Drug Enforcement Administration and the Federal Bureau of Investigation.

Rep. Issa and Sen. Grassley continue to forge ahead in their investigation, and what has come to light is disturbing. Over 2,000 guns were permitted to cross over into Mexico unimpeded. And recent evidence has surfaced that some Mexican drug cartel members acted in an informant capacity against their competitors. And they were allowed to import cocaine, methamphetamine and marijuana into the United States.

Didn’t ATF learn anything from the FBI’s spectacle in Boston Ma., when that agency developed its Top Echelon Informant Program designed to recruit informants within the ranks of street criminals? That program ultimately snared two highly-prized Irish mobsters: Whitey Bulger and Steve “the Rifleman” Flemmi.

These two serial killers were courted by FBI Agent John Connolly, who ran interference for Bulger and Flemmi while they continued their crime spree, decimating the Mafia in north Boston and placing a choke hold on Boston street crime.

To say the FBI was outmanuevered by streetwise Bulger and Flemmi is to recognize the obvious. Now history repeats itself in Phoenix.

 ATF Acting Director Kenneth Melson has appeared before the committee with counsel. Why? Because evidence has surfaced that many ATF officials were in the loop, being routinely briefed on the “progress” of the program?

And,  Attorney General Holder has stonewalled the committee’s investigation. Why? Because many within Justice were aware of this debacle as it unfolded? 

As a criminal defense attorney for over 30 years, I have handled many federal prosecutions in and outside Minnesota involving ATF, DEA and FBI. I cannot fathom a defense where I contend my client didn’t intend to distribute guns or drugs; he only wanted to determine how wide-spread drug/gun possession was in his community. That is not a viable defense.

 And ATF’s explanation for the distribution and eventual recovery of a minimal number of guns is equally laughable.

So where does the congressional hearings go from here? Through the subpoena process the committee should be able to identify the crimes that were committed and who committed them. And then, to borrow a phrase from Rep. Nancy Pelosi (D. Cailf.), “drain the swamp.” That is, can you say “Indictment?”

How many guns have found their way into the hands of killers?

How much dope has found its way into our communities?

How many people have died because of the arrogant and misguided policy of the ATF?

I’m reminded that our President campaigned on a platform of transparency. He selected and supported Attorney General Holder who, I assume, shares the President’s core policy of transparency. Where is that transparency now?  Obama and Holder should have a heart-to-heart talk, maybe over a beer.

Light is the best disinfectant. Let the hearings go forward. Hold those accountable who were irresponsble in conceiving, implementing and protecting  this disasterous program. This is not about politics. It is about holding the ATF to its mission statement: prevent criminals from having guns. It is about holding the DEA to its mission statement: prevent illegal drugs from entering our communities. And it is about holding the FBI to its mission statement: to uphold and enforce the criminal laws of the United States.

But most importantly, it is about the United States Congress carrying out its obligation: to protect its citizens from rogue agents/agencies that believe they are above the law. 

 

 

 

Little Wails Lost in a Sea of Rage: Why Can't We Protect Our Children?

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On July 13, 2011, young Leiby Kletzky was returning from day camp, walking through Borough Park in Brooklyn, one of the safest neighborhoods in New York. The eight- year old was navigating through the streets, having been given permission by his parents to return to the comfort of his home unescorted.

This young man,  maybe a little uncertain in his location, was clearly brimming with excitement  and knowledge that his parents recognized in him a maturity that reinforced their decision to let him walk the few blocks to his waiting mother.

In the time it would take for Leiby Kletzky to walk that short distance, the Kleitzky family’s life would be horribly altered forever. A monster would reach out to a little boy lost, a little boy searching for a friendly face to put him on the right path to his anxious mother. That was not to be.

Mr. Levi Aron, wearing a cellophane smile, stopped to give young Leiby directions. What followed is every parent’s nightmare. A missing child, a frantic search and a dispicable crime that would freeze a seasoned investigator in his tracks.

Leiby Kletzky’s dismembered body was found, parts in Aron’s home and parts in a trash bin. The reason Aron killed Leiby? He “panicked.”

On July 17, 2011, six-year old Max Shacknai died approximately one week after falling down the carpeted stairs of his father’s seaside suburban mansion in Coronado, California. How often do youngsters fall down carpeted stairs without sustaining critical or life-threatening injuries?

Yet Maxie- as he was affectionately known- succumbed to the injuries his twisted and damaged body absorbed as he tumbled to his death. And the person charged with watching Maxie while his father was away? She died four days before Maxie, having been found hanging naked, with hands and legs bound.

Only through extensive examinations, including an autopsy that may detect injuries consistent with rolling injuries, will homicide detectives be able to piece together how Maxie died.

On July 22,2011, Anders Breivik set off an explosion in Oslo, Norway, and then went to Utoya Island and let loose with an automatic weapon, killing many young people attending a political youth camp. The death toll exceeds 70 people dead.

The reason for this sudden burst of homicidal rage? To combat the onslaught of multiculturalism that is transforming Norway through an influx of muslim immigrants, so says Mr. Breivik.

And he says he is not done. He’ll reach out from behind the prison walls to continue his crime spree.

How do we, as a people, protect children from the devastating effects of rage? Or indifference that can lead to death?

Don’t think that child abuse occurs only when there is affirmative, active physical contact. As the professionals who deal with child abuse on a daily basis know, indifference or neglect can, and has, lead to the death of children.

Why is it so difficult to protect children from abuse, ranging from emotional and physical trauma to sexual exploitation? Two words: Human nature! What do I mean by this? I mean those characteristics that distinguish us from other species in how we think, act and feel.

Any student of philosophy, particularly greek philosophy, will concede that no matter how civilized we become as a society, at our core we are brutal and barbaric toward each other. In other words, savages. Each of us, presumably, embody a human soul. Some philosophers believe that the human soul has one part that is human, rational. However, another part has desires and passions that are found in animals.

Many philosophers believe that we are born with a brain that has a “clean slate.” As we mature we learn, remember and incorporate our experiences. Some of us don’t do so well at incorporating the typical, “normal” responses to daily interactions within our world. We don’t follow the normal conventions of what society expects in a given situation.

We rebel. We chafe against the constraints placed on us by society’s expectations. For many, social mores appear to be a constant state of turbulence swirling around us. Be kind. Be accomodating. Be forgiving. Be responsible. Be protective. Whew!

If there are among us those who can’t, or simply refuse to, abide by what is expected of them, how do we protect the children? I don’t have the answer, but I have a suggestion.

As a free society, people are going to exploit others. Manipulate others. Kill others. Some die in the name of war, religion, politics. Others die because some of us choose to act on our hedonistic, brutish ways.

So, how do we protect our children, acknowledging that some of us cannot be trusted to cherish our most precious resource? Fortunately, there many people who, given the chance, will be vigilant protecting children.

We send smart people all the time to Washington, D.C.  They implement laws to regulate commerce and our social interaction with each other. Why can’t someone devise a uniform Safe Zone that could be visible throughout the communities in our country?

A nice, highly visible, maybe bright toxic green banner or flag or signage that would be prominently displayed in store windows, neighborhoods and buildings that all children would be taught to recognize as a “safe zone”-time out if you will-until danger passes.

There is no panacea to this problem. However, we can-and must-affirmatively act to protect our children who are so easily exploited. If we fail to do this, aren’t we partly responsible? 

 

 

 

 

 

 

 

Little Caylee, Little Justice!

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What went wrong?

Or did it?

While I discuss this travesty, reflect on why I believe our Courts of Justice are more appropriately characterized as Conflict Resolution Centers.

The travesty I refer to is not that Casey Anthony was acquitted. It was the correct decision for the correct reason. The travesty is that the general public was misled as to the purpose of the trial. Because of this misperception the public outrage was misguided and misdirected.

Before I continue, a caveat: I did not watch the entire trial. Consequently, I don’t know all of the evidence. But I do know the evidence, or lack of evidence, that buttresses my position.

Invariably, people who watched the trial wanted justice for Caylee. And when Casey was acquitted, there was outrage, anger. But justice for Caylee would, at most, be a consequence of a guilty verdict.

The reason for the trial was to hold Casey Anthony responsible for her daughter’s death. But if the trial was a search for the truth, then all must abide by the rules that guide the litigants in their pursuit of justice.

Some of these rules pertain to the presumption of innocence, the burden of proof and evaluation of witness testimony. To better understand the process, it helps to demystify the trial and application of these rules. There are basically three distinct parts to a trial. Jury selection, or ” voir dire” (meaning to speak the truth), allows the attorneys to question each prospective juror in an affort to find bases to have the judge remove an unfavorable juror due to state of mind (“I can’t presume someone charged with killing their child as innocent”)or, by statute, is unable to serve ( a convicted felon). Voir dire also allows the attorneys to properly exercise peremptory challenges ( no requirement that the attorney identify the reason for striking the juror ). At the conclusion of voir dire, the jury is empanelled to hear the evidence.

The next phase-trial-permits each side to present opening statements (what the attorney’s evidence expects to establish-with the observation that a criminal defendant need not present evidence since the defendant is presumed innocent ) followed by the calling of witnesses, beginning with the prosecution. At the conclusion of all the evidence (the prosecution leads with its case-in-chief; then the defense, if it chooses, presents its case-in-chief, followed by the prosecution’s rebuttal and the defense surrebuttal ) and the trial phase ends with final arguments based on the evidence and the agreed-upon law.

The last phase- jury deliberation- occurs during  an indeterminate length of discussion after receiving jury instructions from the judge, which each attorney had reviewed and either  accepted or rejected.

If it can be argued there was a miscarriage of justice, then the blame must be placed at the feet of the prosecutors. Why? Because they chose which charges and evidence to present to the jury. They framed their ” theory ” (legal argument) as murder and lying to the police and their “theme” (factual argument) as ” mother love ” versus ” party girl”.

As an aside, if you watch any criminal trials,  you will often hear the prosecution couch their theme in everyday, common emotions ( greed, love, hate ) that everyone understands. Simple to digest.

The defense, in a stunning revelation, identified their theory as Caylee accidentally drowned, but her death was covered up. In laying out his theory, the defense stated that Casey had been sexually abused. I say this was a stunning disclosure because as a criminal defense attorney for 32 years, I don’t recall ever giving an opening statement that I was not absolutely certain I had the evidence to support it, including having prepared the defendant to testify in his defense.

Why is this so important? Because when you make an opening as the defense did, you do a couple of things you should only do with great caution. First, you assume a burden of proof you don’t have.

Second, you give the prosecution an opportunity to attack the defendant in final argument. Ordinarily, a prosecutor can’t attack the defendant in final argument  because of the presumption of innocence. Now the prosecutor can challenge the defendant’s version of what happened and, in the process, cover up or gloss over the weaknesses in their case. In effect, shift the burden by claiming the defense did not prove what it alleged in its opening statement

So, what went wrong? It certainly was not the fault of the jury. Many legal pundits are quick to blame the jury, unless the verdict is as the pundits believe it should be.  However, this was a consciencious jury that followed the law. It has been disclosed that the jury foreman, alone,  took over 400 pages of notes.

It’s not the judge’s fault. Rarely does a judge inject himself/herself into a trial regarding presenting evidence without an attorney’s objection or invitation. They are loathe to intrude in the area of ” trial strategy.”

It’s not the defense attorney’s fault. He presented an opening that was, supposedly, based on good faith (i.e. he believed the evidence permitted this interpretation).

The fault must lie with the prosecution because, from my perspective, the prosecutors went out on a limb in presenting evidence from an expert that had never been peer-reviewed by others in that field ( odor detected in the car trunk ) to establish Caylee was in the trunk, decomposing. Without peer review, the opinion has not been tested to establish the expert’s credibility. Undoubtedly, the jury was instructed they could consider the expert’s education, the bases for his opinion, what he relied on in drawing his opinion, etc.  

But the most inexcusable mistake must have occurred in the defense’s final argument. Without any evidence in the record, the prosecution allowed the defense to argue that Caylee accidentally drowned. Before final arguments, the judge ruled that the defense could not comment on Casey having been sexually abused. Why? Because no evidence existed in the record. You cannot argue facts outside the record, unless opposing counsel doesn’t object and you can defend your position as grounded in good faith.

Even if the prosecution had not moved before arguments to restrict the defense’s reliance on accidental drowning, they could have objected during final argument that counsel was arguing facts outside the record. Had they objected,  I believe the judge would have sustained the objection and prevented counsel from relying on this argument.

There was no justice for Caylee in the jury’s verdict. Nor will there be. Nobody else will be charged with her death, intentional or otherwise. There was only resolution of a conflict. The prosecution said that Casey killed her daughter; the jury’s verdict said otherwise.

Based on the evidence presented by the prosecutors-and the argument the defense was allowed to make-the jury reached the correct verdicts for the correct reasons. But this begs the question: Where is justice for a little girl who left this world in a garbage bag and may be remembered as a footnote to a controversial  trial?

Little Caylee, little justice!

Do you wanna buy meth, crack along with a slurpee at 7-11?

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You may be able to purchase meth, marijuana and cocaine along with your favorite beverage at 7-11, if the Global Commission on Drug Policy has its way. The Commission’s report, recently  released,  advocates ending the “criminalization, marginalization and stigmatization of people who use drugs but do no harm to others.”

I applaud the Commission’s stance on grappling with a world-wide problem, but I believe legalizing these drugs is misguided. This high-profile panel includes luminaries from politics and renowned organizations, but not anyone who has had personal experience with the ravaging effects of street drugs.

Equally important is one of  the Commission’s  stated purposes in addressing this problem: Encourage experimentation by governments with models of legal regulation of drugs to undermine the power of organized crime and safeguard the health and security of their citizens.

The Commission appears to engage in a trade-off. That is, to curtail the drug cartels’ vise-grip on drug distribution, the Commission would encourage countries to regulate distribution of street drugs. As a former drug user and now as a criminal defense attorney, I know some things about drugs and their unintended effects.

I know that methadone is used for “maintenance.” How else can I explain why persons I grew up with and who were addicted to drugs switched  to methadone and now, 40 years later, are still getting their juice every week?

I know that persons I have represented who have abused drugs, particularly meth and crack, have destroyed their physical and mental health. And I know that most of these drugs have far reaching effects on the user’s family. From decimating the family unit-absentee parent, termination of parental rights, chemically dependent children-to stunting the deveopment of the family, nothing good comes from legalizing street drugs.

Except maybe curtailing the drug organizations’ cash cow.

As a nation we need to address how we work with chemically dependent people. Even the Obama administration recognizes the futility  in legalizing street drugs as reflected in the June 9, 2011, LA Times article regarding this country’s counter-narcotics policy. But we cannot forsake those addicted at the price of trying to eradicate drugs from our communities.

If we are more vigilant in combating the prevalence of street drugs, along with a responsible,  committed approach to drug treatment, then we will also recognize what anyone who has gone through treatment recognizes:  treatment does work.

Mn. Legislature's Proposed Dept. of Corrections' Budget Cut Delivers One-Two Punch To Chemically Dependent Inmates

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Minnesota prisons are not Party City, nor should they be. Instead, inmates are-first and foremost-imprisoned for retribution, then rehabilitation. Unfortunately, the education emphasized is the prison-style Three R’s(Respect, Reputation and Revenge).

So, when an authentic, effective drug treatment program is operating within the prison walls with documented success, it is in every one’s interest to maintain the program. You would think.

The Minnesota Legislature feels differently. As reported in the May 26, 2011, StarTribune, the legislure proposes a 25 percent cut in treatment funds. This, from a program that reduces the recidivism rate by 25 percent!

How important is this program? It serves up to 1,200 inmates per year in a state with 85-90 percent of its inmates chemically dependent. The degree of dependency does not surprise me. As someone who was nurtured on a wide array of drugs in my teen years, from alcohol to hallucinogens to shoot-dope, and then spent 7-8 years in and out of juvenile and adult “corrections” facilities, followed by the last 32 years as a criminal defense attorney, it was common knowledge among inmates the extent to which inmates were addicted.

In fact, it was the inmate who never drank or did drugs that stood out as the exception to the population. Interestingly, I found as I progressed through the county and then state institutions a marked increase in drug abuse. Many times the addiction would overlay and cloud numerous personal issues, including illiteracy and abandonment, as a child and as an adult. 

As Sen.Warren Limmer, R-Maple Grove, chair of the Senate Judiciary and Public Safety Committee, stated in justifying the budget cut proposal,  the priority is having task forces knocking down doors to drug houses to make the communities safer. But who do the drug houses serve? As a criminal defense attorney who handles a large number of drug cases in both state and federal courts, it is extremely rare to find a drug seller or a patron of a drug house who is not chemically dependent.

Focusing on eliminating drug houses while deemphasizing treatment is a disaster in the making. People go to prison because we-the community-want them in prison. And people will receive treatment when we-the community- decide we want them to have treatment. As Dianne Seger, director of chemical dependency services at the Dept. of Corrections, stated, “They’re going to be your neighbor. Do you want them sober, or do you want them doing what they were doing?”

Surely, not all inmates in the program are genuinely interested in treatment. Undoubtedly, some are gaming the system. But at least they positioned themselves to become exposed to a healthy lifestyle alternative. With them, it might work.

But if we support a reduction in funds, we consciously reduce bed space and counselors dedicated to protecting society through drug rehabilitation, one inmate at a time.

Sen. Limmer, is that not an immediate priority?

Draconian Prison Sentences Smack Up Against Economic Reality

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The announcement of the May 24, 2011, 5-4 U.S. Supreme Court decision mandating that  the California Dept. of Corrections  reduce its bloated inmate population by 33,000 from approximately 144,000 is a long time coming, and directly results from the state’s short-sighted, “law and order” campaign carried out by politicians who had effectively  highjacked the prison reform discussion years ago so as to derail meaningful reform policies.

Apparently, California believed in a corrections model premised on the adage “out of sight, out of mind.” Well, now that the consequences- or downside- of this overarching, myopic view  is in California’s face, the state must grapple with what it has created for its people, inside and out of prison. That is, the disgorgement of 33,000 inmates who will be ill-prepared for life on the streets.

This conundrum was a long time coming. Prisoners, on the whole, are politically impotent. That is, those advocating for prisoner’s rights may as well spit into the wind. For most states, it is easier to implement “get tough” legislation than to provide the necessary funds to carry out these legislative mandates.

California is a case study for the devastating effects of implementing harsh sentencing practices without recognizing that non-violent offenders outnumber violent offenders and that most non-violent offenders will return to society. A quick read of Justice Kennedy’s majority opinion underscores the prison conditions and practices that gave rise to the lawsuit alleging cruel and unusual punishment violative of the U.S. Constitution’s  Eighth Amendment.

References to suicides, inmate deaths from non-existent or substandard medical care and overcrowded conditions are peppered throughout J. Kennedy’s opinion. Too bad California could not have foreseen this burgeoning crisis in the early 90’s when this lawsuit began. Yet, since the begining of this litigation California has failed miserably in addressing their problem.

Most states, I suspect, are facing this looming debacle. Why? Because most states were swept up in this “law and order” publicity campaign throughout the country in the mid-70’s and up to a year or two ago. With the economy tanking and a lack of resources to  remedy inmate overpopulation, states will have to resolve their “prison problem” or risk having the courts intervene and dictate how the states will address this crisis.

It is not enough to turn a blind eye to the problem,  hoping the it will correct itself. I don’t know how deep and pervasive this attitude of denial runs, but I’m reminded of a criminal defendant I represented in Sacramento, Ca., federal court. During the proceeding my client, similar to many of the other defendants in this narcotics conspiracy case, was detained. He spent an inordinate amount of time in the jail.

After negotiating a settlement and during sentencing, I explained to the judge the horrific conditions I had been told existed in the Sacramento County Jail. Requesting jail credit for the time my client spent in custody, I asked the Court to consider granting my client twice as much jail credit based on the deplorable conditions my client endured on a daily basis.

The judge quickly rejected my request, noting that if the defendant didn’t want to endure such conditions, then he should stay out of Sacramento. Apparently, it was lost on the judge that my client had never stepped foot in California; he was indicted in the Northern District-Eastern Division while residing in Minnesota.

Hopefully, my knowledge of the conditions at that jail is not typical of the community at large. Unfortunately, the jail’s conditions were well known by the criminal defense bar as well as the law enforcement community in Sacramento.

Maybe the U.S. Supreme Court’s mandate will be the impetus for true, genuine prison reform. If not, then we must wait for the next court to intervene. Until then, “out of sight, out of mind.”

Transparency in Employment-How Much?

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Mpls. Star and Tribune Reporter Dan Browning captured my attention with his May 9, 2011, article  titled  “Ex-cons make a killing selling coins”. Apparently, the theme of his article is that the precious metals investment industry is rife with unsavory characters who, while selling gold coins , have engaged in unethical practices.

Mr. Browning’s investigation into  this wide-open industry exposes some shortcomings that seem to be typical of most businesses. The article is peppered with such terms and phrases as “convictions,” “criminal records.” Reference to U.S. Rep.A.Weiner, D-N.Y., who has previously introduced legislation to rein in this industry seems plausible.

Transparency is important. But how far does it get us? 

Two days after Mr. Browning’s article appeared, I read in the New York Times the explosive story of billionaire  Raj Rajaratnam, the manager of Galleon Group hedge fund with 7 billion in assets, who was found guilty of numerous counts of fraud. 

What would transparency have told us about Mr. Rajaratnam? That he was a graduate of  the prestigious Warton School at the University of Pennsylvania and  an accomplished invester and trader. How would the investors in his hedge fund been put on notice that he was engaging in unethical practices?

The point is that regulation of an industry does not assure the average consumer that he/she will be insulated from exploitation. But the bigger issue for me is that Mr. Browning takes a broad swipe at one of the most maligned and easily exploited groups in society: convicted felons. Surprisingly, working for one of the most progressive  newspapers in the country,  Mr. Browning defines this group by historical reference to where some had been in life: prison.

How does defining these employees by their past move the discussion forward regarding protecting the public? Maybe  we can protect the public by marginalizing convicted felons and restrict even more their employment. Hell, they don’t need to have lawful, gainful employment. They have a family- children-to provide for? Their street skills should allow for a steady income for the necessities of life.

Unless, of course, we acknowledge that no matter how flawed, these “ex-cons” are like the rest of us. I’d go so far as to say that one major difference between “ex-cons” and others working in many of our loftier professions is that the “ex-cons” have been caught. What was Bernie Madoff’s criminal background before he was brought to justice?

Quite simply, until we move beyond this label of “ex-con,” any dialogue regarding protecting unsuspecting investors and allowing for fair employment is meaningless.

I mean, if this country can look past Pres. Obama’s associations that would have  undoubtedly prevented him from clearing a background check to be an FBI agent, and yet be elected president of the United States, then we can surely look past a felon’s transgressions and allow him/her be a contributing member of society.