Alaskablawg

Drug War Casualties

Via DrugWar rant comes this news about yet another victim in the War on Drugs. Sadly, Cheryl joins this list and this list of Drug War victims. I think one of the best articles I ever read about Drug War victims came from Vin Suprynowicz, writing about the deaths of Veronica and Charity Bowers. For those who do not know, the Bowers were missionaries in Peru. Veronica was 35 years old and was traveling in a small plane with her 7 month old daughter, Charity, when the CIA identified their plane as part of a drug smuggling operation. The Peruvian Air Force, on the orders of the CIA, shot down the Bowers plane, leaving Veronica and her infant daughter to die in the jungle.

In his inimitable style, Vin wrote: "Unless you're in favor of legalizing all drugs, right now, then watching Roni Bowers and her baby choke and scream and bleed and drown in some distant muddy jungle river is exactly what you asked for, what you pay your taxes for, and what you ought to have to watch on videotape every night before you go to sleep." (Quoted in The Ballad of Carl Drega, pg. 567 (Mountain Media, 2002)). I know I could not have said it better. So think of Cheryl, of Donald Scott, of Roni and Charity Bowers the next time you hear somebody talking about how the Drug War is making our society safer.

First Amendment - Drug War

In other First Amendment news, the DOJ has decided to not appeal a judicial decision regarding funding anti-Drug War advertising. The group Change the Climate had purchased ads on the Massachusetts Bay public transportation system decrying the War on Drugs. One ad, for example, noted that the government was spending billions of dollars to lock up non-violent offenders. Congress passed a law prohibiting any transportation group that accepts federal funds from accepting ads promoting the legalization of marijuana. A US District Judge ruled that such a curtailing of funding abridged Change the Climate's First Amendment rights. Interestingly, the Solicitor General refused to appeal, noting that the government really does not have any argument to make. Whether this is a matter of principal or recognition of case law, I do not know. Given some of the other arguments that I have seen the feds make, particularly regarding drugs, I would guess it is the latter. DrugWar Rant gets it right, I think, when it notes that the Solicitor General probably did not wish to get laughed out of court.

In spite of the Cabellas decision, I must say that I am heartened by sites like DrugWar Rant and by the arguments of Judge James Gray and others about the problems with the Drug War. I believe that within my lifetime (and for the record, I'm 35 years old) we will see major decriminalization of drugs. Society as a whole may not see legalization on a grand scale, but I think we as a society will eventually realize that if for no other reason, we simply cannot afford the Drug War and will substantially change our tune. Decisions like Cabellas are frustrating, but I believe they are the last gasps of a failed policy and ideology. Remember, even 10 years ago, it was hard to even mention the 'l' word (legalization) in the same context as marijuana let along other drugs. Today, however, we see a number of people across the political spectrum questioning whether the cost (in dollars or civil liberties) is worth the benefits (?) of the Drug War.

UPDATE: A commenter, S.cotus, correctly points out that I am confusing two situations involving Change the Climate. One was in DC, forbidding federal funding for advertising supporting the legalization of marijuana. The Boston decision, referred to above, prohibited spending money from the transit association (from Boston or whatever municipality in fact ran the transit system) from accepting ads advocating legalization of drugs.

First Amendment - obscenity

With the Cabellas decision, I have not really had an opportunity to talk about an important new First Amendment decision. The Western District of Pennsylvania dismissed an obscenity prosecution in U.S. v. Extreme Associates based, not on First Amendment grounds, but on privacy grounds. Prior obscenity law had really never given a constitutionally adequate definition for what constitutes obscenity versus non-obscenity. This article does a good job explaining some of the significance of the Extreme Associates decision.

Orin Kerr, at Volokh, thinks that this decision will be overturned by the Third Circuit. Maybe he's correct, but I believe that his argument that you cannot get around established First Amendment precedent by sprinkling on Lawrence is not quite accurate. Lawrence was quite explicit that the moral beliefs of a segment of the population will not suffice to curtail constitutional privacy rights. That is not quite what this decision says. Rather, the decision (and findlaw.com article) recognizes that Lawrence signifies a substantial shift in privacy decision making. Thus, while the First Amendment may not protect certain speech, there may be other ways of limiting government's ability to take action with regard to that speech. Anyway, given Cabellas, any decision expanding individual liberty this last week or so is cause for celebration.

The USA Exports Its Drug War

As if the Drug War did not create enough problems in this country, we are exporting it. What I found interesting is that the Canadian authorities cannot search someone's car. The article is not clear just why the search is forbidden - because it resulted from a road block, general suspicion, whatever. But this is really depressing considering the Cabellas decision.

On the other hand, Canada's free speech and firearms decisions and regulations are rather worrisome to freedom-loving individuals.

Cabellas, continued again

Jacob Sullum, a senior editor at Reason, has posted a good article about Cabellas and its ramifications.

Court Opinions for January 28, 2005

The Court of Appeals issued one published decision last week, Nease v. State. Once again, the Court of Appeals refused to answer whether pretextual stops are forbidden under the Alaska Constitution. Peter Nease was stopped when one of his brake lights did not light up when he stopped at a traffic light. The police officer noticed signs of intoxication and arrested NEase for DUI. Nease's attorney argued that the stop for the traffic light was a pretext to stop Nease for driving under the influence.

The traffic stop occurred on February 3, 2002. A few days before that, Officer Torok had seen Nease drinking at a bar. He later saw Nease's car driving down the road and tried to follow Nease's car, but the weather was bad and someone was driving Nease's vehicle at over 75 miles an hour. By the time Torok caught up to him, Nease was out of the vehicle and was obviously extremely intoxicated. Torok could not positively ID Nease as the driver of the vehicle, so he did not arrest Nease but he said that he would get Nease the next time he drove drunk.

On February 3, 2002, Torok saw Nease at a bar in the early morning. ABout an hour later, he saw Nease's car. (This may sound improbable to someone who lives in, say, Seattle or Chicago, but in a small town like Juneau, this is not only probable but extremely likely.) Torok followed Nease. He saw no signs of intoxication, but at the stop light, Nease's brake light did not work so Torok stopped him. He observed the usual DUI litany - bloodshot eyes, the smell of alcohol, slurred speech, etc. He arrested Nease for DUI. Nease's attorney argued in District Court that the stop was pretextual. The District Court (a lower court, dealing with misdemeanors and small civil claims) agreed and suppressed the evidence. The State appealed to the Superior Court (a higher trial court that has jurisdiction to hear appeals from the District Court), arguing that the District Court applied the wrong standard. The Superior Court agreed and remanded to determine whether the stop was objectively justified.

No additional evidence was presented on remand. The District Court found that there was not reasonable suspicion to stop Nease. He found that there was no clear testimony to establish a traffic violation. This finding, however, contradicted his factual findings earlier, which found that the officer's testimony about the brake light not working was uncontroverted. So, the State again appealed to Superior Court, which reversed the District Court and ordered the matter set for trial. Nease entered a Cooksey plea (this plea has different names in different jurisdictions, but it means that he pled guilty and preserved the right to appeal this issue) and appealed.

The Court of Appeals upheld the conviction. They found that the evidence supported Torok's claim that the brake light did not work. They found that a traffic code violation is probable cause for a traffic stop. Torok claimed that when Nease stopped, the brake light did not light up. Nease did not contract this evidence. Nease argued that the brake light was a pretext to allow Torok to stop Nease to see if Nease was driving under the influence.

The Court of Appeals found that it is not necessary to determine whether the AK Constitution forbids or allows pretextual stops because this case does not fall within pretextual stops. Citing LaFave, the Court of Appeals holds that pretextual stops deal not only with the officer's underlying intent or motive, but also if the police officer departs from "reasonable police practices". LaFave writes that suppression is not a remedy if the police action would have been the same if the intent or motivation had been absent.

They found that even if Torok was following Nease to determine if he was intoxicated, this did not infringe Nease's Fourth Amendment rights. The Court held that even if they forbid pretextual stops, the question is whether Nease proved Officer Torok did not follow reasonable police practices when he stopped Nease for the failed brake light. Because of the relevant Alaska Administrative Code, the malfunctioning brake light did provide probable cause for the officer to stop Nease and he was not outside reasonable police practices. Since Nease had been seen drinking earlier that day and since Officer Torok suspected Nease of driving extremely recklessly while under the influence just a few days before, Officer Torok was objectively reasonable in wanting to make sure that Nease was driving while sober.

The Court found that Nease had presented no evidence suggesting that cops do not stop to issue citations in this instance. Other types of evidence that Nease could have presented would be evidence that Torok manipulated this stop by 'abnormally' expanding or extending the stop or that this stop exceeded the normal duration of a citation stop.

In summation about this case, the Court of Appeals appears that it will not deal with the issue of pretextual stops until a defendant can show that the police were unreasonable in their traffic stop. If I had to bet, and I would do so reluctantly, I would bet that the Court of Appeals will ultimately disallow unreasonable pretext stops. The problem with this, though, is that police know the law and it can be very hard to demonstrate that their version of events is incorrect.

The tape recording of all interviews mandated by Stephan will certainly help, but consider: how would Nease (or anybody else, for that matter) get proof that police officers never stop motorists under the circumstances of this case. A search of traffic citations for malfunctioning equipment would be a decent start, but 1) what public defender has time to make that search; and 2) what private citizen has the resources to pay for that search on a misdemeanor? Second, even if such proof is obtained, there is another element that is for all intents and purposes unobtainable. For proper comparison, Nease would have to show all of the instances in which a police officer could issue a citation and instead chose not to. Very few police officers want to talk to defense attorneys anyway. Even if they did, how can we be sure of the accuracy of their recollections? Forget deliberate lies - do you think anybody could accurately remember over a year how many opportunities for traffic citations that they intentionally did not pursue? It is statistically impossible to obtain the type of evidence that the Court of Appeals describes as necessary to show an 'unreasonable' stop.

Also, this focus on reasonableness will ultimately favor police officers. If we search for reasonableness under the totality of the circumstances (part of the test in Langdon v. State, the Washington case that prohibits pretextual stops in that state), issues of fact will probably wind up being decided against a defendant. Notice the type of proof that Nease has to present. Last time I checked, if a defendant moved to suppress evidence, it is the burden of the State, not the defendant, to show that the stop was justified.

In the meantime, for Alaska attorneys who practice in this area, it is clear that to even consider pretextual stops, the Court of Appeals is wanting some sort of proof that the stop was unreasonable. I would suggest that if there is no evidence of such in your case, do not raise the issue of pretextual stops.

Given the tone of the Court of Appeals, we in Alaska may wind up with more protection than what is afforded under the Fourth Amendment as decided in Whren. And while that will be a victory, I wonder whether that victory will be Pyrrhic.

Avalanche preparedness

In the interest of promoting avalanche safety in this state (which has the highest per capita death rate from avalanches in the country), I offer this helpful safety tip. The only issue I see is that in Alaska, most people who die in avalanches do so while skiing or, especially, snowmachining. It is hard to see how you could carry that much beer on your back or in your snowmachine.

Cabellas, cont.

Radley Balko, a.k.a. The Agitator, follows up on the Cabellas decision with this column on Fox News. Good column pointing out how the War on Drugs is shredding our Bill of Rights. While I generally agree with his point, he claims that our criminal justice system is devolving into a two-tier system: one system for those charged with drug offense and everybody else.

With all due respect to Radley, who I really admire, I think that he is wrong. With a view from the trenches in the last ten+ years, I think that the drug war's erosion of our rights is creeping into other cases. When we see warrantless search exceptions being expanded, drug cases are frequently cited. They then become precedent for future courts to consider when dealing with search and seizure (and other criminal) issues.

Parole and Overcrowded Prisons

The Houston Chronicle (a paper that, from what I can see, does a pretty good job of giving equitable coverage to criminal justice issues) has an editorial about how minor probation and parole violations are resulting in crowded prisons. The editorial points out that small infractions, such as meeting a mandatory probation meeting, results in a probationer serving more time. When the probationer was originally charged with a non-violent offense, this policy results in the prisons being filled with non-violent offenders and the state scrambles to house violent offenders.

This makes me wonder when we decided that any infraction of the prevailing morality should result in a jail sentence. I can understand why jail is appropriate for someone convicted of serious, violent felonies, such as murder, rape, robbery, assault with serious physical injury, etc. But let's take vandalism (criminal mischief in Alaska) as an example. Most states have felony vandalism or destruction of property. The distinguishing characteristic between felonies and misdemeanors is the value of the property damaged. In Alaska, if the damage is more than $500, the mischief charge is a felony. Right now, I will not raise the issue that continuing to increase the number of felonies decreases the seriousness of felonies. But if someone maliciously damages my vehicle (which is not much of one, let me assure you), jail is not really important to me. After all, my taxes wind up supporting the guy. Instead, I want my stuff repaired. His being in jail does not really restore my stuff.

I recognize that there is not going to be any political candidacy that promises to be 'soft' on crime, but why does being hard on crime mean the same old thing: making more crimes, making more misdemeanors to be felonies, and adding jail sentences and fines to existing punishments. Why not look at some other options for some of the lower-level, non-violent felonies and misdemeanors? Just a thought.

Victims' Rights

I have previously blogged on the Office of Victim's Rights (see here and here). In talking with a couple of attorneys this last week, I learned that the OVR does not support 'victims' who do not wish to prosecute cases. They only support and represent victims who wish to see the defendant go away. Why is one decision any more intrinsically valid than the other? Yes, there are some 'victims' who are too scared to testify, but there are also some who use a little altercation as a time to get payback. Which is worse - someone too scared to testify or someone exaggerating a situation because (s)he is pissed off at the defendant?

I think they should call the agency 'The Office That Supports People Who Want To Put Other People In Jail'. But OVR is easier for some to remember than TOTSPWWTPOPIJ. "OVR" probably gets more funding, too.