Archive for the 'Criminal Law' Category

Does any government have the legitimate power to ban medical marijuana?

Posted by on Dec 10 2012 | Constitutional History, Constitutional Law, Constitutional Theory, Criminal Law, Growth of Government, Paternalism

Ernst Freund was one of the Founding Fathers of progressive constitutionalism. His 1904 book The Police Power: Public Policy and Constitutional Rights argued for a vastly expanded understanding of the police power. (The police power, broadly defined, is a government’s power to regulate health, safety, welfare and morals. It is distinct from other government powers, such as the tax power, or the military power. In the U.S. system, the federal government does not have a police power, except as to federal territories, but the States do have a police power.)

Freund’s expansive view of the police power aimed to overthrow the then-prevailing (at least in theory) view, articulated by Christopher Tiedeman in his 1886  A Treatise on the Limitations of the Police Power in the United States, that the police power could only be used to prevent people from harming others or violating their rights. In the long run, Freund’s view became the mainstream.

So what would Freund, that great advocate for loosening the restraints on big government, have to say about laws which prohibit the medical use of marijuana? Here’s what he wrote about liquor prohibition:

All prohibitory laws make an exception in favor of sales for medical purposes. This is not a legislative indulgence but a constitutional necessity, since the state could not validly prohibit the use of valuable curative agencies on account of remote possibility of abuse. “[T]he power of the legislature to prohibit the prescription and sale of liquor to be used as medicine does not exist, and its exercise would be as purely arbitrary as the prohibition of its sale for religious purposes….” The right to an adequate supply of medicines cannot be cut off by the legislature, and when legal provisions would have such effect they must that extent be inoperative.

Freund, at 210-11, quoting Sarrls v. Commonwealth, 83 Ky. 327, 332-33 (1885) (interpreting physician exception in statutory ban on liquor transfers).

In The Evolving Police Power: Some Observations for a New Century (27 Hastings Const’l L.Q. 511 (Spring 2000)), Glenn Reynolds and examined the trend in some courts towards judicial recognition of an issue on which Freund and Tiedman agreed: however one defines the boundaries of the police power, it is not infinite, and there are some personal zones into which it cannot reach.

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The Ruby Ridge murders, 20 years later

Posted by on Aug 22 2012 | Criminal Law, Executive Branch, Growth of Government, guns, Self-Defense, Targeted Killing, War on Drugs

The Prologue to my book No More Wacos: What’s Wrong with Federal Law Enforcement and How to Fix it, includes a section on the Ruby Ridge case. Much more on Waco and Ruby Ridge is available on the Waco page on my website.

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Independence Institute Writers In The News

Posted by on Jun 25 2012 | Corporate Welfare, criminal justice, Criminal Law, Drug Policy, energy, Health Care, overcriminalization, PPC

Plea bargains, corporate welfare, twinkie taxes and fracking are all topics of recently published works by Independence Institute writers.

In the Colorado Springs Gazette, frequent Independence Institute guest author Ari Armstrong examines the consequences to the right of a jury trial from having over 97 percent of Colorado’s criminal convictions be from plea bargains.  Writes Ari:

Colorado criminal statistics for the years 2006 through 2011 show that Colorado prosecutors rely on plea bargains to reach convictions an overwhelming 97.6 percent of the time, according to documents obtained by the Independence Institute through a Colorado Open Records Act request.

According to those documents, only 4,241 felony convictions resulted from a jury trial, or 2.4 percent of the total of 175,015 felony convictions. A total of 6,101 felony cases went to trial, so the conviction rate at trial was 70 percent.

Read the whole thing here.

In the Denver Post, senior fellow Fred Holden and research director Dave Kopel explain that Gaylord style corporate welfare violates the Colorado Constitution.  Fred and Dave ask:

By what authority can the state government take tax money out of your pocket and give it away to a private corporation? The answer is that corporate welfare schemes, such as so-called “public-private partnerships,” flagrantly violate the Colorado Constitution.

Check it out here.

Also in the Denver Post, Health Care Policy Center Director Linda Gorman makes the case that giving government more power to tax and control “bad” food (think twinkie tax) is offensive to liberty.  As Linda notes:

Obesity can impose costs on others, and the obvious solution is to allow people who provide services to charge the obese more when they are more costly to serve.

Full piece is here.

In the current Denver Business Journal, research associate Donovan Schafer reminds us to keep the relative risk of hydraulic fracturing (fracking) chemicals, Benzyne in particular, in perspective, finding that:

While Benzyne and other air pollutants shouldn’t be ignored when discussing oil and gas development. it’s important for the public to recognize the estimates and limits set by the EPA represent very small-though perhaps not insignificant-risks, and that these risks are comparable to those associated with automobile emissions, urban living and industrial activities in general.

The piece is behind the DBJ’s subscription wall, but can be read on the Independence Institute energy blog here.

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Colorado Senators Prefer Warantless Federal Raids

Posted by on May 27 2012 | congress, criminal justice, Criminal Law, Economic LIberties, overcriminalization, PPC, Thuggery

Reason magazine’s Mike Riggs reports that the U.S. Senate on Thursday voted 78-15 to table an amendment offered by Sen. Rand Paul (R-KY.) to basically demilitarize the Food and Drug Administration. As Riggs describes it Paul’s amendment would have, among other things, “prohibited FDA employees (as well as all other Health and Human Services employees) from carrying weapons and making arrests without warrants.” The amendment would have also added a mens rea, or “guilty mind” requirement for criminal prosecution of laws and regulations the FDA enforces.

Senator Paul’s wholly legitimate beef with overreach and abuse by the FDA comes from armed FDA bureaucrats raiding Amish dairy farms, seizing property and arresting dairy farmers without warrants for selling milk directly from the cow (raw milk).

Both of Colorado’s U.S Senators, Mark Udall and Michael Bennett voted in favor of tabling the amendment, and thus voted in favor of continuing warrantless raids by militarized FDA bureaucrats on farmers earning a living by engaging in peaceful commerce with willing customers.

Update: While the 15 Senators who voted in favor of due process, the Fourth Amendment and reigning in over-zealous, armed federal bureaucrats were all Republicans, a sharp eyed facebook commenter notes that 28 other Republican Senators from across the country joined with Democrats to create a supermajority in the Senate in favor of warrantless raids by the FDA. Putting Bennett and Udall in poor company indeed.

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Reducing the Drug War’s Damage to Government Budgets

Posted by on May 14 2012 | Constitutional History, Criminal Law, federalism, Proposed Legislation, supreme court, Tenth Amendment, War on Drugs

That’s the title of an article that I have co-authored with the Cato Institute’s Trevor Burrus, in a symposium issue of the Harvard Journal of Law & Public Policy. The symposium is “Law in an Age of Austerity,” and includes contributions from Charles Cooper (Treasury Dept.’s authority to index capital gains for inflation), John Eastman (state authority to enforce immigration laws), and others.

The major part of the Article details some recently-enacted criminal law and sentencing reforms in Colorado, which mitigate the fiscal damage of the drug war. The second part of the Article summarizes the fiscal benefits of ending prohibition. Finally, the Article looks at some of the legal history of alcohol prohibition, and suggests that current federal drug prohibition policies are inconsistent with the spirit of the Tenth Amendment, including  state tax powers.

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Are Opponents Of Drug Law Reform Dishonest, Ignorant, Or Both?

Posted by on Apr 17 2012 | criminal justice, Criminal Law, Drug Policy, PPC

Senate Bill 163 is a modest but important next step in scaling back the worst excesses of the expensive, intrusive and counter-productive War on Drugs in Colorado. The bill would lower the penalty for simple drug possession from a Class 6 Felony to a Class 1 Misdemeanor. In other words, possessing small amounts of currently illegal drugs would still be illegal, but without the lifetime punishment a felony drug conviction carries in lost opportunity. This is a long overdue reform that has some opponents making such hysterical and blatantly false claims about SB 163 that they must be dishonest, ignorant, or maybe a little of both.

An online petition against SB 163, addressed to Governor Hickenlooper and members of both the Colorado house and senate, has been started at the website with the hysterically inaccurate title: “Stop Senate Bill 12-163 which Decriminalizes hard drugs.” The petition continues its fabrications: “Senate Bill 163 will make possession of up to two ounces of hard drugs such as Cocaine, Ecstasy and Methamphetamine a misdemeanor to possess in this state.” What a pack of nonsense.

To begin, moving simple drug possession from a felony to a misdemeanor is not even close to the same as decriminalization. A Class 1 Misdemeanor is a serious criminal offense in Colorado. One for which the penalty could actually result as much time in a jail as you might spend in a prison for a Class 6 Felony.

Moreover, two ounces of Cocaine, Ecstasy or Methamphetamine is a significant amount of drugs that might cost thousands of dollars. SB 163 addresses possession of small amounts of drugs, two to four grams (depending on type of drug), which is less than the weight of an American nickel. Possession of two ounces of illegal drugs would obviously remain a serious felony crime.

So it’s not entirely clear if those responsible for the petition are simply lying about what SB 163 does, or if they are just not bright enough to know the difference between a misdemeanor crime and decriminalization, or the difference between ounces and grams. And as of this writing they have managed to fool nearly thirty people, apparently none willing to do a little basic research on their own, into signing the petition.

Whatever the case, hopefully the lawmakers who receive the petition won’t be fooled by either ignorance or lies about SB 163.

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Florida’s Self-Defense Laws

Posted by on Mar 27 2012 | Crime Victims Rights, Criminal Law, Criminal Procedure, guns, Self-Defense

Media coverage of Florida’s self-defense laws in recent weeks has often been very inaccurate. While some persons, particularly from the gun prohibition lobbies, have claimed that the Martin/Zimmerman case shows the danger of Florida’s “Stand your ground” law, that law is legally irrelevant to case. So let’s take a look at what the Florida laws actually say.

Fla. Stat. § 776.012. Use of force in defense of person

A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or

So the general rule is that deadly force may be used only to “imminent death or great bodily harm,” or “the imminent commission of a forcible felony.” A person may only use deadly force if he “reasonably believes” that the aforesaid factual conditions exist. These standards are the norm throughout the United States.

Eventually, a grand jury will issue a report based on its investigation. In the meantime, there are two competing narratives. In one narrative, Zimmerman followed Martin, attacked him, and then murdered him. Let’s call this the “M narrative.” In Zimmerman’s account, he followed Martin,  caught up with him, and then left; while he was leaving, Martin attacked him, knocked him to the ground, and began slamming his head into the  pavement. Let’s call this the “Z narrative.”

I am not making any judgment about which narrative is more plausible. The grand jury will do that. For now, it should be noted that neither the M narrative or the Z narrative has anything to do with a duty to retreat. The retreat issue would only be relevant if Martin were the aggressor, and Z had the opportunity to escape from Martin in complete safety. Then, and only then, would different state standards about retreat be relevant. Simply put, everyone who has claimed that Florida’s retreat rule affect the legal disposition of the controversy is either misinformed or mendacious.

The core Florida law on deadly force in self-defense leads to clear results. If M is true, then Zimmerman’s firing of the gun was a criminal homicide. If Z is true, the act was lawful self-defense. The results would be the same in every other state.

Under Florida law, there is another set of circumstances in which deadly force is permitted is:

(2) Under those circumstances permitted pursuant to  s. 776.013

The cross-references is to a statute involving self-defense in one’s home or automobile. Neither of these is relevant to the Martin-Zimmerman case.

Fla. Stat. § 776.013. Home protection; use of deadly force; presumption of fear of death or great bodily harm

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

(2) The presumption set forth in subsection (1) does not apply if:

(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or

(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or

(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

The home/automobile law allows use of deadly force against intruders who unlawfully enter the victim’s home or occupied automobile. The law makes specific exceptions if the intruder has a legal right to be there, or is lawfully exercising child custody rights, or if the person in the home/automobile is engaged in illegal activity, or if the intruder is law enforcement officer who has identified himself as such.

Again, the home/automobile provisions have no relevance to Martin/Zimmerman case.

Next is the issue of retreat:

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

Again, this is irrelevant to the Martin/Zimmerman case. A duty to retreat, if it existed, would apply to a crime victim, who would be required to retreat than to use force in self-defense, if retreat were feasible. In the M version of the case, Zimmerman stalked and shot Martin; Martin never attacked Zimmerman. Accordingly, Zimmerman never had any lawful right of self-defense. Only Martin had violently and feloniously attacked Zimmerman would there be an issue (in any jurisdiction) as to whether Zimmerman had a duty to retreat. In the Z version of the case, there was such an attack, but it was impossible for Zimmerman to retreat. Thus, duty to retreat law has no bearing on the case.

Historically, American states have been split as to whether there is ever a duty to retreat, and under what circumstances. Richard Maxwell Brown’s excellent book No Duty to Retreat: Violence and Values in American History and Society (1994) details the strong trend in American courts in the late 19th and early 20th centuries against a duty of retreat. The U.S. Supreme Court said the same thing in Beard v. United States, 158 U.S. 550 (1895):

[Beard] was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground, and meet any attack upon him with a deadly weapon, in such a way and with such force as, under all the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, were necessary to save his own life, or to protect himself from great bodily injury.

Beard involved a victim on his own land. The Court unanimously re-affirmed Beard‘s no-retreat rule in Alberty v. U.S., 162 U.S. 499 (1896), which involved a person in his own home. Allen v. United States, 164 U.S. 493, 502 (1896), involved a victim who was on someone else’s property; there, the Court upheld a jury instruction in favor of a duty to retreat.

Finally, in Brown v. United States, 256 U.S. 335 (1921), Justice Holmes writing for a unanimous Court that included Louis Brandeis (the greatest Progressive jurist), explained:

Rationally the failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing; not a categorical proof of guilt. The law has grown, and even if historical mistakes have contributed to its growth it has tended in the direction of rules consistent with human nature. Many respectable writers agree that if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant he may stand his ground and that if he kills him he has not succeeded the bounds of lawful self defence. That has been the decision of this Court. [cite to Beard.] Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore in this Court, at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant rather than to kill him Rowe v. United States, 164 U. S. 546. The law of Texas very strongly adopts these views as is shown by many cases, of which it is enough to cite two. Cooper v. State, 49 Tex. Cr. R. 28, 38, 89 S. W. 1068. Baltrip v. State, 30 Tex. App. 545, 549, 17 S. W. 1106.

It is true that in the case of Beard he was upon his own land (not in his house,) and in that of Rowe he was in the room of a hotel, but those facts, although mentioned by the Court, would not have bettered the defence by the old common law and were not appreciably more favorable than that the defendant here was at a place where he was called to be, in the discharge of his duty. [Defendant Brown was an employee at a federal navy yard, where Hermis attacked him with a  knife.]

The above cases all involved federal common law, applied to the federal Territories and to federal property. States, of course, are free to chart their own course. Judges can revise the common law, and legislatures can enact statutes which differ from the common law. Under the English common law of Blackstone, there was no duty to retreat in the home, and no duty to retreat when the use of force was necessary to commit a forcible felony, such as arson. Retreat was required, if practicable, in cases “of a sudden brawl or quarrel” outside the home. See also Hawkins, Pleas of the Crown, sects. 106-07; Bishop’s Criminal Law, sect. 850 (most influential American criminal law treatise of latter 19th century; person who is victim of murderous attack has no duty to retreat).

In sum, Florida’s non-retreat rule is not some 21st century novelty. It is consistent with a long tradition of American law, in which different states have had a variety of rules about when, if ever, retreat might be required.

Even among the most restrictive states, such as New York, retreat in safety is not required before using deadly force in the home; to prevent a burglary (if the person reasonably believes that the criminal would use force to thwart the person’s termination of the burglary) ; to prevent a robbery ; or to prevent a kidnapping, forcible rape, or other forcible criminal sexual attack.  Thus, whether you are in Lake Placid, New York, or Lake Placid, Florida, and someone attempts to rob you when you are walking down the street, you have no duty to retreat before using deadly force to thwart the robbery.

Back to the Florida statute, which then provides some additional legal standards for home/automobile defense:

 (4) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

(5) As used in this section, the term:

(a) “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

(b) “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

(c) “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

The next part of the Florida Code concerns “Use of force in defense of others.” Fla. Stat. § 776.031:

A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other’s trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be.

Deadly force is permitted only when “reasonably” believed “necessary to prevent the imminent commission of a forcible felony.” The no-retreat rule is the same as for self-defense.

We have now covered the entire relevant sections of Florida’s self-defense statutes. Not one word of them provides the slightest legal protection to Zimmerman, if the M version of the events is true. The grand jury will decide whether there is plausible evidence in support of the M theory.

Florida law provides some protections for persons who have lawfully used force against a criminal attack.

Fla. Stat. § 776.032. Immunity from criminal prosecution and civil action for justifiable use of force

(1) A person who uses force as permitted in  s. 776.012 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

So if a person used force lawfully in self-defense against a criminal attacker, then his actions are justified (not merely excused), and he may not be arrested, criminally prosecuted or sued. It seems obvious that persons who have obeyed the law should not be arrested or prosecuted. Nor should criminals or a criminal’s relatives be able to harass the victim by filing a civil suit.

(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

The Sanford police said this is why they did not arrest Zimmerman: they did not have probable cause to believe that he had broken the law. In fact, the statute does not change the law, but it apparently is effective at reminding law enforcement officers of the standard they are required to obey. Regarding arrests, the United States Constitution requires that “The right of the people to be secure in their persons . . . against unreasonable . . . seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the . . . persons . . . to be seized.” As judicially interpreted, the Fourth Amendment does not require a warrant for some arrests, but the probable cause requirement remains enforceable. The normal rule in American law is that a police officer must have “probable cause” in order to arrest someone.

Another protection:

(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

So if a lawful defender is sued, then the court will attorney’s fees and costs to the victim of the improper suit, who was, of course, also the crime victim.

Finally, Florida law guaranteeing self-defense rights express excludes anyone who “Initially provokes the use of force against himself or herself.” Fla. Stats. 776.041. As is typical in other states, the provoker can only regain self-defense rights  if:

(2)(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

The only way that this statute would be relevant would be if Zimmerman initially attacked Martin, and then withdrew. Zimmerman has made no such claim, nor does the M narrative.

In sum: there is not a shred of support for the claim that Florida law protects, or has protected Zimmerman, if he unlawfully attacked Martin. If Zimmerman’s story is true (Martin attacked him, putting him in imminent peril of grave bodily injury, with no opportunity to retreat), then Zimmerman’s self-defense claim would be valid under the laws of Florida, New York, or any other Anglo-American jurisdiction. The particular legal changes resulting from Florida’s “Stand Your Ground” and “Castle Doctrine” laws (deadly force in the home/automobile; no duty to retreat in public places; Fourth Amendment arrest standard affirmation; protection from civil suits) simply have nothing to do with whether Zimmerman’s actions were or were not lawful.

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Direct File Review In Colorado Good For Juvenile Justice

Posted by on Mar 09 2012 | criminal justice, Criminal Law, Justice

On March 7, House Bill 1271 passed out of the Colorado House Judiciary Committee by a 9-2 vote. The bill would allow, with certain exceptions, judicial review of district attorneys’ decisions to charge juveniles as adults in criminal cases. Currently, DAs have unlimited discretion to “direct file” against juveniles without review by a judge. The bill now heads to the appropriations committee.

The following is a letter sent in February to Colorado lawmakers on the need for judicial oversight of direct file by myself and Marc Levin from our sister think tank, the Texas Public Policy Foundation (TPPF). The letter is on behalf of the Independence Institute, TPPF and Right on Crime:

Dear Colorado Policymakers,

We are writing to share our perspective on modifications to Colorado’s direct file
policy, which would ensure judicial review of juvenile cases transferred to criminal court.

As you know, the Independence Institute is a free market think tank that has been
providing research and analysis to Colorado’s policymakers for almost thirty years. The
Independence Institute seeks to empower individuals and enhance personal and economic
freedom. The Institute’s Justice Policy Initiative researches the impact of criminal justice
policies and practices on prison spending, law enforcement priorities and the lives and
liberties of Coloradans.

In that same vein, Right on Crime works to advance conservative, principled solutions
that are proven to reduce crime, lower costs and restore victims. Right on Crime is a national
initiative led by the Center for Effective Justice at the Texas Public Policy Foundation, one
of the nation’s leading state-based conservative think tanks. The Texas Public Policy
Foundation’s mission is to promote and defend liberty, personal responsibility, and free
enterprise by educating policymakers with academically sound research and outreach.

Through TPPF’s Center for Effective Justice, which researches policies that cost effectively
protect public safety, restore victims, and reform offenders, we have been at the
forefront of criminal justice initiatives in Texas that have gained national attention by
reducing both the incarceration rate and, most importantly, the crime rate. These principles
are anchored by our Statement of Principles, signed by some of the nation’s most respected
conservative leaders.

The Independence Institute, TPPF, and Right on Crime do not endorse specific
legislation, but we would like to briefly provide our perspective on reformation of
Colorado’s direct file policy.

Under current law, prosecutors have the legal authority to unilaterally transfer a
juvenile delinquency case to criminal court without judicial review. Such a decision cannot
be appealed by the juvenile.

The unique circumstances surrounding juvenile delinquency require care on the part of criminal justice system. Research has found juvenile offenders are especially capable of reform and rehabilitation, and the juvenile justice system is uniquely positioned to both hold youths accountable and change their ways.

Further, even serious juvenile offenders often benefit from the programming and
services available only in juvenile detention facilities. Facilities tailored to juveniles are
typically more effective and safe for these offenders, and the decision to transfer a juvenile to
criminal court forecloses these opportunities.

For these reasons, we believe that judges should have a role from the outset in
determining the proper venue for the adjudication of a juvenile. Certainly, taking advantage
of judicial expertise in making such difficult decisions does not preclude prosecutors from
obtaining a judicial determination that some youths’ criminal actions warrant transfer.
However, judges as neutral arbiters are best situated to objectively consider the facts and
circumstances of each case.

This is the procedure in Texas, where the process of trying a juvenile’s crimes in
criminal court, called certification, must be judicially directed. The judge is required to find
both probable cause the offense was committed, but also that the welfare of the community
demands criminal proceedings, based on the seriousness of the offense or the background of
the youth.

Based on a totality of the factors, we believe that judicial review must be an integral
part of transferring a juvenile to criminal court, given both the rehabilitative aspects of
juvenile offending and the specialized programing offered in the juvenile justice system. We
would encourage you to consider these factors in your deliberations regarding Colorado’s
direct file policy.

In conclusion, we wish to thank you for your public service and your consideration of
our perspective on this topic.

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Bleg on 3-strikes laws

Posted by on Jan 08 2012 | Criminal Law

What are the most draconian three-strikes laws currently on the books? Do any states still have a 25 year mandatory minimum for the third strike?

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2011 drug law reform in Colorado a mixed bag

Posted by on Dec 02 2011 | criminal justice, Criminal Law, Drug Policy, PPC, War on Drugs

In 2010, Colorado lawmakers took a meaningful step towards drug law reform by passing House Bill 1352, which nibbles at the edges of the disastrous War on Drugs by amending some of Colorado’s controlled substance statutes (see my HuffPost Denver piece on HB 1352).

And while lawmakers continued that reform momentum this year, those efforts were tempered by other bills that expanded an already intrusive and expensive drug law regime that returns questionable public safety value.

For instance, the 2011 Colorado Legislature voted overwhelmingly to create new drug felonies (and thus new drug felons) by passing Senate Bill 134 which added synthetic cannabinoids and the naturally occurring Salvia Divinorum as Schedule I illicit drugs under Colorado’s Uniform Controlled Substances Act.

The Legislature in 2011 also involved itself in human resource decision making by local school districts by passing House Bill 1121, which among other things bars those convicted of a drug felony from employment with a school for five years from the time of conviction. This despite a lack of any evidence that the hiring of drug felons by school districts is a problem in Colorado.

But in the same session where Colorado lawmakers expanded the scope and reach of Colorado’s drug laws, they also passed several drug law reforms.

In this podcast, I interview Christie Donner about these reforms, and what they are meant to accomplish. Besides being the Executive Director of the Colorado Criminal Justice Reform Coalition, Christie is also on the Drug Policy Task Force of the Colorado Commission on Criminal and Juvenile Justice (CCJJ). The three bills were generated out of recommendations of the CCJJ and all have been signed into law by Governor Hickenlooper. The bills are:

Senate Bill 96, which excludes Class 6 felony drug possession convictions as a qualifying offense to be convicted under Colorado’s habitual offender statute.

House Bill 1064, which establishes a presumption in favor of granting parole to an inmate who is parole eligible and serving a sentence for a drug use or possession felony that was committed before August 11, 2011 (inmates must meet other criteria related to their behavior in prison and criminal history to be eligible for the presumption).

House Bill 1167, which shortens the time frame people convicted of certain drug crimes (schedule is staggered based on the seriousness of the offense) must wait before petitioning the court to seal that criminal record.

For a more thorough explanation of these reforms give a listen here.

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