For those that couldn’t make it to their TV last Friday and missed this riveting episode of Devils Advocate starring yours truly, public defender Doug Wilson, and District Attorney Don Quick on where criminal justice has been and where it’s going in 2011.
Archive for the 'Criminal Law' Category
Hey, break out the handcuffs for this Friday’s episode of Devil’s Advocate as I am joined by Colorado State Public Defender Doug Wilson and Adams/Broomfield District Attorney Don Quick for a discussion on criminal justice related bills in the 2011 General Assembly and the ongoing work of the Colorado Commission on Criminal and Juvenile justice. That’s tomorrow night, 8:30 PM, on Colorado Public Television 12.
In this ivoices.org podcast, I interview Christie Donner about three drug law and drug offense sentencing related bills passed in the 2011 Colorado legislative session. 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). This a companion bill to last year’s drug law reform bill HB 1352, described in my Huffington Post piece here.
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.
Give a listen here.
This month marks the 40th anniversary of the contemporary war on drugs in the United States. In 1970, a Democrat-controlled Congress passed and Republican President Richard M. Nixon signed into law the Comprehensive Drug Abuse and Control act, which consolidated and updated all previous federal drug laws. Included in the legislation was the Controlled Substances Act (CSA), which established five categories (or “schedules”) of regulated drugs based on their medicinal value and potential for addiction, and which remains the legal framework for the war on drugs. In 1971, Nixon declared drug abuse to be “public enemy number one in the United States” (a ludicrous statement) and the modern drug war was launched.
For a fuller examination of the history, and consequences, of drug prohibition in the United States, see my co-authored (with Dave Kopel) monograph on the issue, The Drug War against Civil Liberty and Human Rights, published by the Liberal Institute of the Friederich Naumann Foundation.
To mark the occasion, I am re-reading Mark Bowden’s terrific book, Killing Pablo, the story of the rise and fall of Colombian criminal and terrorist Pablo Escobar, who in the 1980s became fabulously wealthy, powerful and infamous due to drug-prohibition, much the same way American criminal Al Capone became fabulously wealthy, powerful and infamous a half-century earlier due to alcohol prohibition.
It is also a story of the wild abandon with which American drug warriors were (and still are) willing to irresponsibly grow the size and power of government, “reinterpret” inconvenient laws, blur the line between soldier and police, launch military actions, throw away ridiculous amounts of tax dollars, and waste both lives and liberty in a futile effort to stop free Americans from consuming politically incorrect substances. From Killing Pablo (page 54):
In April of 1986, the president [Reagan] had signed National Security Decision Directive 221, which for the first time declared drug trafficking a threat to national security. The directive opened the door to direct military involvement in the war on drugs, which was placing a growing emphasis on attacking the crops, labs and traffickers in Central and South America. This was an unprecedented mixing of law enforcement and military missions, and Reagan directed that any American laws or regulations prohibiting such an alliance were to be reinterpreted or amended. The Departments of Defense and Justice were directed to “develop and implement any necessary modifications to applicable statutes, regulations, procedures and guidelines to enable U.S. military forces to support counter-narcotics efforts.” Beginning that summer, U.S. Army troops joined DEA agents and Bolivian police in raiding fifteen cocaine processing labs in that country.
For an explanation of how U.S. drug war efforts in Andean Ridge countries has thwarted free-market capitalism, destroyed the livelihood of subsistence farmers, enriched narco-terrorists and criminal thugs, strengthened the role of the military, weakened civilian rule, and propped up government corruption, see my chapter (again, co-authored with Dave Kopel) “A Foreign Policy Disaster” in the book, The New Prohibition: Voices of Dissent Challenge the Drug War (Accurate Press, 2004).
Republican State Representative Mark Waller and Democrat State Senator John Morse are the sponsors of Senate Bill 11-186, which would allow Colorado’s judicial districts to establish an “alternative” bond program that would exist alongside the private-sector bail bonds industry. At first blush, it sounds like big-government wanting to crowd out the private sector, but a closer look says maybe this isn’t such a bad idea. After all, the bail bonds business is a form of government-sponsored monopoly, with their business model, and profits, built entirely on the state’s police power to arrest its citizens.
For instance, in March I bailed a guy out of Jail. His bail was $10,000 cash or surety bond. I called a bail-bondsman, paid him $1,000 (his 10 percent fee for putting up the $10,000 bond) and signed an indemnity agreement. After being released, the guy I bailed out wrote me a check for the $1000. But here’s the thing, even if all the charges against the guy I bailed out are dropped, or he is eventually acquitted, he doesn’t get his $1000 back. That money is gone, a sunk cost of temporarily buying back your liberty after being arrested but before being adjudicated. For those who can’t afford that fee, their option is to stay in jail on the taxpayer dime.
But under Senate Bill 186, there would be another option. That $1000 to get out of jail could instead be paid directly to the judicial district, with up to 50 percent going towards:
…development and administration of pretrial treatment services for defendants, the costs of securing a defendant’s appearance in court when a defendant fails to appear, or any other costs that are reasonable and necessary for the administration of a pre-trial services program.
In other words, pre-trial services programs in the judicial districts that have them (or want to establish them) would be funded by defendants using the alternative bond program, rather than by taxpayers as is currently the case in Colorado.
But here’s the kicker, if the defendant follows all the conditions of the bond:
…the remaining moneys shall be returned to the defendant at the conclusion of the defendants case; except that , if the defendant is convicted, the remaining moneys shall first pay any fines, fees, costs, surcharges, and restitution assessed against the defendant, and the balance of the defendant’s money, if any, shall be returned to the defendant.
In other words, if after bonding out of jail the charges are dropped, or you are acquitted, you get back at at least half of the money you put up for your bond, as opposed to getting back nothing now.
Since the criminal justice system is such a complete and utter state monopoly, shouldn’t we be open to seriously consider more bond options when it comes to who sits in jail on the taxpayer dime?
In early February, the Independence Institute, the Colorado Criminal Justice Reform Coalition, and the Pew Center on the States held a panel event on the ongoing work of the Colorado Commission on Criminal and Juvenile Justice (CCJJ) and the prospects for criminal sentencing, parole, and other criminal justice related reforms in the 2011 Colorado General Assembly.
The event brought together sometimes disparate interests including advocates for limited government, criminal justice reformers, representatives of both the Colorado Criminal Defense Bar and the Colorado District Attorney’s Council, and lawmakers, including a Denver Democrat and a Colorado Springs Republican.
The remarks of all the panelists are available as audio files, and well worth listening to for anyone with an interest in criminal justice issues in Colorado.
My own very brief introductory remarks available here.
Remarks by Pat Steadman, Colorado State Senator and CCJJ drug policy task force member available here.
Remarks by Mark Waller, Colorado State Representative and CCJJ commissioner available here.
Remarks by Maureen Cane, Policy Director of the Colorado Criminal Defense Bar and CCJJ task force member available here.
Remarks by Tom Raynes, Executive Director of the Colorado District Attorneys Council and CCJJ task force member available here.
Remarks by Christie Donner, Executive Director of the Colorado Criminal Justice Reform Coalition and CCJJ task force member available here.
State spending does not drive the prison population. Rather, just like an entitlement, the prison population drives state spending. The legislature’s ability to affect the prison caseload, and thus the corrections budget, rests in its prerogative to write, and when necessary, re-write the state’s criminal sentencing and parole laws and policies.
In 2010, Colorado lawmakers passed and Governor Ritter signed a half-dozen sentencing and other criminal justice-related bills that were generated out of the work of the Colorado Commission on Criminal and Juvenile Justice (CCJJ). All of these bills were fairly modest in scope (an appropriate enough approach to most criminal justice reform efforts), but taken together it was the most significant effort at sentencing reform, and thus prison spending reform, in Colorado in the last twenty-five years. Indeed, the last time the Colorado legislature took this big a swipe at sentencing was in 1985 with House Bill 1320, which not only increased the minimum sentences for crimes of violence, but also doubled the maximum penalties for all levels of felony crimes, regardless of the nature of the crime, in Colorado’s presumptive sentencing range. Colorado taxpayers have been paying the price of runaway prison spending, with a less-than-clear public safety benefit, ever since.
The CCJJ is still working, and there will be both more recommendations and more sentencing and criminal justice-related bills in the 2011 Colorado General Assembly. So the Independence Institute is teaming up with the Colorado Criminal Justice Reform Coalition and the Pew Center on the States to throw a panel event to find out just what is on tap for sentencing reform in Colorado this year.
The event will be Tuesday, Feb. 8 at 5:00 PM at the University Club, just north of the Colorado State Capitol. Panelists include State Representative and CCJJ commissioner Mark Waller; State Senator and CCJJ drug task force member Pat Steadman; Christie Donner, Executive Director of the Colorado Criminal Justice Reform Coalition and CCJJ task force member; Richard Jerome from the Pew Center on the State’s Public Safety Performance Project and yours truly from the Independence Institute.
Our friends at the libertarian litigation firm the Institute for Justice (IJ) are trying to fight the insane world of civil asset forfeiture laws. Where the police can take your property without arrest, without prosecution, and without much of a reason. Where you must prove that you are innocent while fighting the presumption of guilt. Talk about turning the justice system on its head! Take a look at how ridiculous this crazy world is in this new IJ video:
In their massive Policing for Profit report, IJ graded each state’s asset forfeiture laws, and how they protect citizen’s property. Unfortunately, only 3 states in the entire country received a grade of “B” or better, with Colorado getting a hard-earned “C.” Our Justice Policy Initiative Director Mike Krause wrote briefly about the report and Colorado’s asset forfeiture laws in this article.
In May, Governor Ritter signed into law six criminal justice reform bills generated out of the work of the Colorado Commission on Criminal and Juvenile Justice (CCJJ). On this week’s Devil’s Advocate (still loving this new name!), State Representative Claire Levy (D, Boulder) and Adams County District Attorney Don Quick, both members of the commission, join me to discuss the significance of the CCJJ bills and where the work of the commission might go from here. That’s this Friday at 8:30 PM on KBDI, Channel 12, re-broadcast the following Monday at 1:00 PM.
My DU colleague Thomas Russell, who used to teach at the University of Texas Law school, has a written a paper, available on SSRN, which urges the University of Texas Law School to rename Simkins Hall, a law and graduate male student dormitory named for William Stewart Simkins. Simkins taught equity, contracts, procedure, and related topics at UT for three decades in the early 20th century. He was also a founder of the Ku Klux Klan in Florida, and every year at UT he gave a formal speech extolling the Klan.
Most of Russell’s paper concentrates on Simkins’ career at UT, as well as the 1954 decision (five weeks after Brown v. Board was announced) to name the dormitory after him. I was curious to learn more about Simkins had actually done with the Florida Klan, so I read Michael Newtown’s book The Invisible Empire: The Ku Klux Klan in Florida.
The Florida KKK organized in 1867–68. Simkins later described himself at the Klan leader in Taylor, Madison, and Jefferson counties. These three contiguous counties are part of the eastern panhandle, east of Tallahassee. As far as the record shows, Simkins never claimed that any Klan actions in those counties had been carried out contrary to his orders, or that he regretted anything the Klan did in those counties. Accordingly, it is plausible to hold Simkins personally responsible Klan activity there.
Federal troops were withdrawn from Florida in July 4, 1868. From July 8 through 14, five blacks were murdered by “white regulators.” In mid-July through October 1868, the Madison County KKK murdered seven more blacks, including Randall Coleman, a leading Republican.
In Taylor County, “masked night riders paraded with KKK flags and threatened farmers who refused to join the Klan.”
Florida’s Governor Reed had purchased two thousand muskets for the state militia. On the night of November 5, 1868, while the train carrying the muskets had stopped at the Greenville station in Madison County, Klan raiders removed all two thousand muskets–destroying some, and keeping the rest. Simkins later bragged that “Every telegraph operator, brakeman, engineer and conductor on the road was a Ku Klux.”
The Jefferson County Klan coerced white farmers into refusing to sell land to freedmen, or to taking the money, and then having the Klan drive the freedmen off his new freehold.
According to Newton, Madison County was the second-worst county in Florida for Klan violence, with 25 murders from 1868–71. The victims were always members of the Republican party.
On the night before the November 7, 1870, election, “armed riders invaded” the town of Madison, “harassing black voters.” On election day in Monticello, Jefferson County, “Georgia Klansmen joined the local mob and hundreds of shots were fired in a rioutous demonstration of white solidarity,” intended to frighten blacks against voting.
The election results left the state government weakly in reconstructionist hands. The store belonging to Madison County Sheriff Montgomery was burned on December 17.
Congress passed a new, stronger Enforcement Act in April 1871, and in November, a congressional subcommittee held four days of hearings in Tallahassee about Klan crimes. Even so, another Republican’s store was torched on November 6, 1871. However, President Grant’s October declaration of martial law in nine South Carolina counties had a chilling effect on the Klan, and by 1873, Florida Klan supporters were denying that there have had been a Klan in Florida, or were claiming that if there had been one, it was no longer active.
Simkins himself happened to leave Florida for Texas in either 1871 or 1873. (Sources conflict.) He particpated in two 1894 U.S. Supreme Court cases, Reagan v. Farmers’ Loan & Trust Co. and Reagan v. Mercantile Trust Co. He supported the Texas Attorney General’s argument that the judiciary had no power to review the reasonableness of railroad rates which had been established by the Texas Railroad Commission. The Supreme Court, in an unanimous opinion by Justice Brewer, disagreed.
That Simkins was an advocate of the unreviewable power of unreasonable government economic regulation should be no surprise. As David Bernstein explains in his book Only One Place of Redress: African-Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal, the caste system of Jim Crow was founded on government power to prevent black and white people from freely choosing to engage in economic relations.
Last Friday, the University of Texas announced the formation of a special working group which will issue a report on the Simkins naming controversy by the end of June.
Simkins should have been denied admission to the Florida bar in 1870, based on his admitted role in the theft of firearms from the militia of the state of Florida, and his role in organizing and leading a terrorist organization which appears responsible for numerous homicides and many other violent felonies. In 1870, the Florida Supreme Court did not know of the evidence regarding Simkins’ terrorist crime spree in 1868–70, but the 2010 working group will have more information.
Of course the fact that a person is an unrepentant, retired, terrorist is not necessarily a bar to being a professor at a prestigious law school–not for William Stewart Simkins at Texas in the early 20th century, or for Bernardine Rae Dohrn at Northwestern in the early 21st century.
Readers who are interested in more on the Simkins controversy may enjoy the blogging thereon at The Faculty Lounge, which has been covering the story since Russell released his paper.
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