Thousands of arrests are made in Isla Vista each year, making it one of California's "high crime" areas. However, a good deal of the arrests have to do with college-aged people ingesting and possessing alcohol, street drugs (e.g., marijuana, cocaine, methamphetamine, ecstasy, psilocybin, LSD, heroin, and more) and prescription medication. Sales, furnishing and transportation of these substances account for a good deal of the more serious arrests. The local jail is over-crowded which creates a perception of leniency due to the fact that there is little or no room for those with minimal criminal history who are facing lower grade charges . Yes, indeed, the jail penalties for this class of offenses, and many others, are not as severe as they are in many (or perhaps most) other jurisdictions AND many people are released back into the community on their own recognizance pending the conclusion of the case. Another factor it seems is that of social acceptance. Yes, it happens to be commonplace to get arrested in Isla Vista. Everybody who has lived in IV has had a friend or a roommate arrested; and all you have to do is walk around on a weekend night on Del Playa and you'll see tons of young clean-seeming college students getting patted down, cuffed, sat on the curb and hauled away by the Foot Patrol. Those same kids will usually be released soon thereafter and then might have to pay a fine and be on probation. So, what's the big deal?
You won't have to go far in Isla Vista to find a young kid (sorry to say it, but it's usually a young man), who has all kinds of opinions of what the larger meaning of it all is and what the recently arrested person should do about it. After all, they will tell you, proudly, that they have already been arrested three times, and look!, they're still standing. They're still in school. They didn't spend any appreciable time in jail. Or, perhaps even more compellingly, they did, but now that they've suffered that terrible fate, they know exactly how to avoid having that happen again should they be arrested again. These folks are akin to what we in the trade refer to as "jailhouse lawyers". The only differences are that these guys are typically out of jail on good behavior (probation) or are out of jail, pending trial, on their own recognizance. A few of them have posted bail. These folks are full of wisdom and know just as much as, if not more than, any smooth-talking lawyer in a cheap suit, right?
Uh, no, wrong.
Whatever the motive - perhaps it's for the same reason a surfer might want to show you the scar from where the shark (okay, harbor seal) bit them - there is a tendency to minimize the longterm significance of an arrest in Isla Vista; a "normalization", if you will. Everyone's doing it. It's a badge of honor. It's how you earn your IV street cred, right?
Uh, no, wrong.
This is the way I look at - and I am not just talking to the population of Isla Vista when I say this: when you get arrested, society is attempting to marginalize you; to render you a criminal. Yes, a criminal. Somehow people think that criminals are the "other" and I, myself, could never be considered a criminal. Perhaps it is the mass media (including the news, TV shows like CSI and Law & Order as well as movies and crime novels) that always give us permission to think that certain people are just not physically capable of being considered criminals. They are just too "nice", "good-natured", "well-raised", "well-off", "good looking" (and yes, i have definitely heard at least one person say, or imply, such an asinine thing), "well-meaning", "white" etc. to ever be considered a criminal, right?
Uh, no, wrong.
Everyone, and I do mean EVERYONE (present company NOT excepted) is inherently capable of being rendered a criminal and it is almost necessarily going to consist of two voluntary acts: (1) the act which made the police think that he or she committed a crime and (2) the act of pleading "guilty" or "no contest" to a criminal charge. It takes seconds to plead to a misdemeanor, and just 20 minutes or so to plead to a felony. Seriously, that's what is happening each and every time the cuffs get slapped on: Society is mounting an attack against your good name. Society is seeking put you in the underclass: The class of persons who have trouble getting taken seriously and who people (particularly little old ladies who live in the suburbs) are afraid to be around. What else? To be a criminal is to have an uphill battle getting a job where you thought you were a shoo-in. Being a criminal means getting rejected from colleges and graduate programs. Being a criminal means that you will likely be denied scholarships, financial aid and perhaps it may even affect your credit score. Being a criminal means that your life will be even more difficult in a tough economy because you WILL have trouble getting a job (no matter what your qualifications). You may have trouble getting a professional license. As a criminal you will have a tougher time finding a place to live as lot of landlords will reject your rental application out of hand. And, perhaps you haven't considered that being a criminal will make it more likely that someone can win a lawsuit against you because you won't be considered a strong witness (considering your criminal history) and that you will have a tougher time bringing a civil claim against someone else for the same reason. Becoming a convicted criminal can greatly diminish, if not destroy, the value of your degree; the degree for which you are working so hard and paying so much. These are things that the "jailhouse lawyer" hasn't told you. So, you ask, what do you do to avoid becoming a criminal? Talk to a criminal defense lawyer.
Tuesday, February 17, 2009
Monday, February 9, 2009
Bad Cop, No Donut?
Does the recent U.S. Supreme Court decision, Herring v. U.S., signal the end of the "exclusionary rule"? (For those who aren't students of criminal procedure, the "exclusionary rule" is what keeps evidence that was obtained in violation of the U.S. Constitution from being used against a criminal defendant at trial and, if applied, often results in the entire case against them being dismissed).
Perhaps, yes. It is precedent for the idea that the criminal does not necessarily go free where the constable blundered or, as in this case, where the constabulary erred. The warrant upon which Mr. Herring was seized (i.e., "pulled over"), was entered into the computer erroneously, but not in bad faith, by someone other than the officer that pulled him over. Okay, so what? Well, according to the majority, the purpose of the exclusionary rule was to deter intentional misconduct by law enforcement. I guess I agree with that, but here's the point of separation. When we speak of institutions, we can find intent on the part of the higher ups (such as chiefs, and other administrators), or a more nebulous form of intent on behalf of the entire institution where they have failed to put systems in place which will limit the degree of intrusions into the private lives of law abiding people. Not telling police departments, as the Supremes could have, that their failure to develop and implement systems (through software, double-checking by human beings, etc.) to better ensure that information entered into the widely available databases may result in bad guys going free was an opportunity squandered. Incidentally, implementing such systems would also save a lot of valuable law enforcement time by making sure that their time is not wasted barking up the wrong trees. So, everybody could have won: The general public could have won, the police (in a broader sense) could have won, and an occasional undeserving criminal defendant could have won. The latter, according to the ingenious Warren Court, was a worthwhile price to pay for a freer society. The over-arching principals in force are that (1) there is no perfect solution to the problem (and, yes, to my conservative friends who don't know what it's like to be jacked up by cops for no reason, there IS a problem) and (2) that the American values of privacy and freedom that serve to allow us all to live without a rational worry that we will be subjected to the random and otherwise unfettered curiousities of law enforcement are worth sacrificing a small amount of security.
Another discussion that has emerged in the wake of Herring is: "what else might we do to deter police misconduct which violates the U.S. Constitution?". Here are some thoughts:
1. Deprive the offending officer of a paycheck for every violation.
2. Make the offending officer where a patch on his uniform that reads, "I violate people's consitutional rights".
3. Fire the offending officer.
4. Make the offending officer pay money damages to the defendant.
5. Exclude "some" of the illegally obtained evidence. (Hmmm...just the wrapper?)
6. Make the jury aware of the violation and tell them that they may decide to acquit the defendant on that basis. (That might work...maybe...uh, in a marijuana possession case.)
My experience teaches me that prosecutors, judges and cops hate the exclusionary rule so much, that they'll do nearly anything to get around it. What we see in reaction to it are very narrow readings of the rules, and usually a tortured reading of the facts (a very common work-around is to argue that officer didn't actually pull the person over for a dubious legal reason, they pulled them over for a totality of dubious reasons which, altogether, amount to one legal reason) . The less honest police officers will lie to cover up their violation. It's not at all hard to imagine how that happens. If they were lazy about understanding and respecting the Fourth Amendment, who's to say that they won't be just as lazy about understanding and respecting their duty to be honest (when under oath) and otherwise? A rule which does not burden the public safety as much as the "exclusionary rule" might solve this problem. However, would a cop lie to keep his job? Would he lie to avoid public shaming? Would he lie to save money? Would a judge or prosecutor avoid engaging in intellectual dishonesty in order to protect the cop from these various punishments? I say, let's not bother finding out.
Perhaps, yes. It is precedent for the idea that the criminal does not necessarily go free where the constable blundered or, as in this case, where the constabulary erred. The warrant upon which Mr. Herring was seized (i.e., "pulled over"), was entered into the computer erroneously, but not in bad faith, by someone other than the officer that pulled him over. Okay, so what? Well, according to the majority, the purpose of the exclusionary rule was to deter intentional misconduct by law enforcement. I guess I agree with that, but here's the point of separation. When we speak of institutions, we can find intent on the part of the higher ups (such as chiefs, and other administrators), or a more nebulous form of intent on behalf of the entire institution where they have failed to put systems in place which will limit the degree of intrusions into the private lives of law abiding people. Not telling police departments, as the Supremes could have, that their failure to develop and implement systems (through software, double-checking by human beings, etc.) to better ensure that information entered into the widely available databases may result in bad guys going free was an opportunity squandered. Incidentally, implementing such systems would also save a lot of valuable law enforcement time by making sure that their time is not wasted barking up the wrong trees. So, everybody could have won: The general public could have won, the police (in a broader sense) could have won, and an occasional undeserving criminal defendant could have won. The latter, according to the ingenious Warren Court, was a worthwhile price to pay for a freer society. The over-arching principals in force are that (1) there is no perfect solution to the problem (and, yes, to my conservative friends who don't know what it's like to be jacked up by cops for no reason, there IS a problem) and (2) that the American values of privacy and freedom that serve to allow us all to live without a rational worry that we will be subjected to the random and otherwise unfettered curiousities of law enforcement are worth sacrificing a small amount of security.
Another discussion that has emerged in the wake of Herring is: "what else might we do to deter police misconduct which violates the U.S. Constitution?". Here are some thoughts:
1. Deprive the offending officer of a paycheck for every violation.
2. Make the offending officer where a patch on his uniform that reads, "I violate people's consitutional rights".
3. Fire the offending officer.
4. Make the offending officer pay money damages to the defendant.
5. Exclude "some" of the illegally obtained evidence. (Hmmm...just the wrapper?)
6. Make the jury aware of the violation and tell them that they may decide to acquit the defendant on that basis. (That might work...maybe...uh, in a marijuana possession case.)
My experience teaches me that prosecutors, judges and cops hate the exclusionary rule so much, that they'll do nearly anything to get around it. What we see in reaction to it are very narrow readings of the rules, and usually a tortured reading of the facts (a very common work-around is to argue that officer didn't actually pull the person over for a dubious legal reason, they pulled them over for a totality of dubious reasons which, altogether, amount to one legal reason) . The less honest police officers will lie to cover up their violation. It's not at all hard to imagine how that happens. If they were lazy about understanding and respecting the Fourth Amendment, who's to say that they won't be just as lazy about understanding and respecting their duty to be honest (when under oath) and otherwise? A rule which does not burden the public safety as much as the "exclusionary rule" might solve this problem. However, would a cop lie to keep his job? Would he lie to avoid public shaming? Would he lie to save money? Would a judge or prosecutor avoid engaging in intellectual dishonesty in order to protect the cop from these various punishments? I say, let's not bother finding out.
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