Where's the justice in that?

Scott Greenfield over at Simple Justice posted a very interesting piece on the abuse of mandatory minimums in federal drug cases. While one defense attorney, prosecutor turned defender of liberty, Jim Walden, argued that mandatory minimums were a useful tool - when used "properly" - in the War on Whatever Drugs; Mr. Greenfield pointed out that the problem wasn't how mandatory minimums were (or weren't) used, the problem was with the entire concept of mandatory minimums.

Yet again, we're asked to trust those in power to exercise it as they see fit.  Trust them. Believe in them. Don't worry our naive heads about it, as they will protect us from the evil people.  Let them have their mandatory minimums, and smarter people than us will remind the Prosecutors should they forget Congress' will, to exercise their vast but necessary power with mercy and discretion, fairness and equity. 

Except that's neither how the law works, nor is supposed to work.  The law is not meant to be a bludgeon in the hands of the government, where the powerful get to exercise it if and when they deem it necessary.  That Hawkish Mr. Walden trusts the Department of Justice to tread lightly where he, in his hawkish personal opinion, believes it's warranted is not a substitute for my vision of fairness and equity.   

It's not that we disagree that street level drug dealers should not be subject to the mandatory minimums. Indeed, we are in complete agreement, to that extent.  But I have no plans on handing unfettered discretion to the government to decide if and when to slam a defendant, because someone in the United States Attorneys office has decided that he's the one who deserves it.

And a recent example here in Texas makes Scott's case.

Meet Elisa Castillo. She's a 56-year-old first time offender who is serving life in a federal prison for her role in a drug smuggling operation. She was convicted for being the manager of the operation that smuggled over a ton of cocaine across the border into the United States on tour buses.

Probably not the wisest of business moves, I think we can all agree. But Ms. Castillo isn't a drug kingpin. She's never ordered the killing of anyone. She's never killed anyone. No one put a reward out for her arrest. But now she sits in a federal prison in Fort Worth where she will one day die.

The most notorious drug kingpins have never been sentenced to life in prison. Of course those farther up the food chain have something that Ms. Castillo didn't - information. She couldn't provide the feds with any information that proved useful in putting anyone else behind bars so she was of no use to federal prosecutors.

The latest case in point came this week with the negotiated surrender of a Colombian drug boss Javier Calle Serna, whom the United States accuses of shipping at least 30 tons of cocaine. 

While how much time Calle will face is not known publicly, he likely studied other former players, including former Gulf Cartel lord Osiel Cardenas Guillen. 

Cardenas once led one of Mexico's most powerful syndicates and created the Zetas gang. He pleaded guilty in Houston and is to be released by 2025. He'll be 57.

But, no matter how bad a man you are and no matter how many deaths you are responsible for, if you have some information to barter with, the US Attorney is more than willing to talk to you.

In 2010, of 1,766 defendants prosecuted for federal drug offenses in the Southern District of Texas - a region that reaches from Houston to the border - 93.2 percent pleaded guilty rather than face trial, according to the U.S. government. Of the defendants who didn't plead not guilty, 10 defendants were acquitted at trial. Also, 82 saw their cases dismissed.

Ms. Castillo had the unmitigated temerity to hold the government to its burden of proof. She claimed that she didn't know that cocaine was being smuggled on the tour buses. I have no idea what really happened - and neither did the jurors.

But because Ms. Castillo chose to exercise her right to a trial, she paid the ultimate trial tax.

That's right, Mr. Walden, let's just put our trust in the judgment of federal prosecutors - because we know they'll always do the right thing.

Creative thinking in public education?

Possession means actual care, custody, control of management. 

-- Texas Controlled Substances Act Sec. 481.002(38)

Possession is different than use. Possession is different that "under the influence."

To possess an item is to exert some degree of control over a tangible object. The tangible object, such as a controlled substance, is necessary to prove possession. After all, you can't have control over something that no longer exists.

For instance, one may be in possession of marijuana at the time he is smoking it. But, as he smokes the marijuana, the drug breaks down in various components and metabolites in his body. At the same time, the marijuana itself is destroyed by fire. After smoking marijuana one may be "under the influence" of it. One may even be intoxicated by smoking the marijuana, though that would be difficult to prove without a test showing the concentration of the metabolites in the body and expert medical testimony regarding the effects of marijuana in the concentration found in the body.

The State of Texas defines marijuana (please, someone, explain to our legislators that no one else spells marijuana with an h) as "the plant Cannibis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture or preparation of that plant or its seeds."

Nowhere in the definition of the hippy lettuce does the state allege that the metabolites left in the body after ingesting marijuana is marijuana.

Texas defines controlled substance is "a substance, including a drug, an adulterant and a dilutant listed in [the Controlled Substance Act]."

Once a person absorbs a controlled substance, Xanax, for instance, that substance is broken down by the body into various metabolites - a term not used in the definition of controlled substance. One can be intoxicated if he ingests a controlled substance (or marijuana) and loses the normal use of his mental or physical faculties as a result. However, one is not in possession of the controlled substance once it has been ingested - because the controlled substance itself no longer exists.

In fact, you can make the argument that once someone is "under the influence" of a drug, that the drug is in control of the person and not the other way around. How else could one be "under the influence?"

But try explaining that simple concept to a school administrator who declares that being under the influence of a drug on a school campus is the same thing as possessing the drug on a school campus. I recently had a school administrator tell me, with a straight face, that, per district policy, that if a student is under the influence of Xanax, for instance, that student is considered to be in possession of the drug; and, since possession of Xanax is a state jail felony, that the student under the influence of Xanax is subject to expulsion because their conduct amounted to a felony.

Huh?

I have yet to find a statute in the Texas Penal Code or in the Health and Safety Code that makes it a felony to be under the influence of Xanax (unless, of course, the person was driving a vehicle with a child or was in an accident that resulted in serious bodily injury or death to another person).

Just something to think about.

Another urban myth goes to the wayside

It's time to debunk another urban legend that winds its way through courthouses in this neck of the woods - that you must keep your prescriptions in the bottle in which they came.

Prosecutors from here to the coast will tell you that it's against the law to carry prescription medications in something other than the container in which they were supplied. If this were true, then everyone living in a retirement complex or assisted care facility would be guilty of possession of a dangerous drug.

The law in Texas states that "[a] person commits an offense if the person possesses a dangerous drug unless the person obtains the drug from a pharmacist... or practitioner..." A dangerous drug is defined as a drug "that is unsafe for self-medication" or is a drug that may only be dispensed with a prescription.

The law does not state that you cannot put your prescription medications in a different container. Where the confusion arises is with the offense of delivery or offer of delivery of dangerous drug. Delivering a dangerous drug to another is a criminal offense unless the drug was delivered by a pharmacist pursuant to a prescription and the drug is delivered in a container stating the name of the pharmacy, the date of the prescription, the name of the prescribing physician, the name of the patient and the directions for use.