Law Blog

With the arrest and recently announced dropped charges against renowned black Harvard professor Henry Louis Gates Jr., the world seems to be once again entrenched in the subject of racial prejudice.  Actually that’s a bit of a stretch.  I seem to recall another semi-important event that may have helped bring the spotlight back on race before this whole Gates debacle.

However, unlike the election of our new black president, the disorderly conduct charge levied by the Cambridge Police Department against the distinguished director of Harvard’s W.E.B. Du Bois Institute for African American Studies probably wouldn’t demonstrate to most people how much our country has evolved since the Civil Rights Movement.  If anything it seems to show how stunted this country can still be in matters of racial tolerance.

The exact details of the case are still subject to debate.  The only fact corroborated by both sides is that Gates was arrested for disorderly conduct outside of his home after Cambridge police responded to a 911 call from a woman stating she saw two black males attempting to break into Gates’ house.  The men were Gates and his driver, and they were attempting to push the front door open because it was stuck in its frame.  Gates eventually got in through the back door when he was confronted by a Cambridge officer.  Gates claims he repeatedly asked for the arresting officer’s name and badge number, and when he followed the officer outside of his home, he was arrested.  The officer claims Gates accused him of racism and refused to calm down after several warnings that his conduct was becoming disorderly.

Well, it’s all moot now because the charge has been dropped.  So we’ll never get to know the juicy details or witness the spectacle of a public trial.

In this humble blogger’s opinion (because I’m sure you’re all waiting with bated breath to hear it), I suspect both sides decided not to pursue the case because it probably would’ve ended up making both parties look pretty bad.  As great as our country’s adversarial court system is, in cases of “he said, she said” it becomes the job of the prosecution and defense to put down the other side.  So in the end, no matter who wins, everyone ends up getting dragged through the mud.

So what’s the point of this post?  Well, aside from giving me yet another chance to hear myself talk, reading this case got me thinking.  Regardless of who was the one actually responsible for escalating the situation, ultimately this case was started because of race and was given the amount of attention it has received because it involved the presumption of wrongdoing due to the race of a prominent scholar.  It really made me wonder, if someone with Gates’ level of achievement can still face such prejudices, how’s the rest of the country faring?  According to the latest statistics from LegalMatch, apparently not so well.

In the last quarter alone, the number of race discrimination cases received by LegalMatch has increased by nearly 50 percent over the previous quarter.  Approximately 30 percent of these cases stem from being fired due to race and over half of them come from employees in the food service and retail industries.  Even more shocking is that the next highest instances of discrimination originate from those employed in the education field.  Stranger still, the statistics regarding gender discrimination almost exactly mirror those regarding race.

It’s a little disconcerting to see these trends.  Perhaps America isn’t exactly the melting pot it’s cracked up to be.  Either that or maybe someone just needs to turn down the burner a little…

Over 2 million restraining orders are issued in the United States each year. In the past 12 months several hundred customers logged onto LegalMatch.com seeking legal help in obtaining restraining orders.  The table below shows the top targets:

• Someone I date or used to date: 44%
• My spouse or former spouse: 31%
• Family member: 17%
• Neighbor: 5%
• My co-worker or former co-worker: 3%

LegalMatch data correlates with statistics from the Department of Justice showing that spouses, family members, and intimate partners make up the vast majority of victims of violent crimes, rapes, and stalking. DOJ statistics also show that 25% of women and 7% of men were raped and/or physically assaulted by a current or former spouse, cohabiting partner, or dating acquaintance at some time in their lifetime. It makes sense that 92% of LegalMatch.com clients seeking restraining orders come from one of these groups.

In some cases after restraining orders are issued, however, startling studies indicate that the risk of physical violence to partners increases. How is this possible? 

In the past decade a variety of states enacted laws mandating that police arrest anyone suspected of violating domestic violence-related restraining orders. This was contrary to many prior policies stating that arresting a misdemeanant was discretionary. Unfortunately, a Harvard study indicated that the risk of partner-homicide in 15 of these states increased by 60% after implementation of the new laws. Why? Victims that did not want their significant other arrested simply didn’t call the police.

Rather than learn from their mistakes, several states have also instituted “no-drop” policies. Similar to mandatory arrest, these states do not allow prosecutors to drop charges against a partner accused of violating a restraining order, as would be customary with other charges. Just like mandatory arrest, policies such as this discourage people from calling the police, since more often than not victims do not want their significant others arrested.

What can be done? Regardless of mandatory arrest or no-drop policies, it is always risky to call the cops into your home to solve a domestic dispute. Since their only tool is a rather blunt hammer, the police tend to see every problem as a nail. Perhaps a mixture of better training for cops dealing with domestic violence disputes plus increased discretion for prosecutors and police officers would help, but ultimately domestic violence is not something that our government, or any government, can really stop via law enforcement. Whatever the solution, tying the hands of law enforcement does not appear to be working.

Other than drug possession, there might not be a bigger criminal defense field than drunk driving attorneys. In the past year alone thousands of clients have come to LegalMatch.com seeking an attorney to represent them in a drunk driving case.

Most people have heard of a .08 blood alcohol content (BAC) limit, and will somehow assume this has something to do with driving drunk. In reality the law varies by state to state. (How many times have you heard that?) Some states have higher legal limits than others, or laws that do not require a blood alcohol measurement for conviction.

The following lists the most common BAC levels cited by the thousands of LegalMatch customers looking for a drunk driving attorney last year, in order of frequency: 

• I don’t know: 24%
• .10 to .15: 20%
• No test given: 16%
• .16 to .20: 12%
• .08 to .09: 9%
• .21 or more: 7%
• .07 or less: 7%

There is an easy joke here about not remembering what your test score was for driving drunk. I will eschew it as a matter of editorial professionalism. There are a variety of reasons besides inebriation for not knowing what the test results were.

My interest lies in the 7% who were pulled over and arrested for being below a .07%. The reason most states utilize a .08% blood alcohol level is because of studies showing a significant drop off in a person’s ability to drive with a .08% or above BAC. Prosecuting the offense follows a familiar pattern: introduce the reading, introduce the expert, and introduce the findings damning the defendant to the nether-regions of presumptive guilt-purgatory.

But what about the tee-totaling .07 percenters?  Presumably their state still allows for their prosecution. In California, for instance, you can be prosecuted either for being above a .08%, or for driving “while under the influence.” In English, that means that you were so under the influence that your ability to drive was impaired.

Even though the defendant can technically still be guilty of a crime, anything below a .08 BAC in a state like California will always be used by the defense. Why? Because jurors expect a .08 reading or above. It is akin to the CSI effect: jurors expect police investigations to have fancy forensic scientists with super-technologically advanced super-computers that can recreate three dimensional representations of a crime scene piece by piece. Which of course is a complete fantasy.

For whatever reason, jurors come into the court with a preconceived notion that drunk driving means driving above a certain level, usually .08%. The truly rational left brained jurors might be able to completely shed this preconception. The majority of jurors, on the other hand, are skeptical of a test below .08%, or the absence of a test at all. Throw in error rates and the fuzzy science often relied upon by prosecution experts as “proof” that field sobriety tests show impairment, and the prosecution usually has a loser on its hands.

Reasonable minds may differ on the necessity of the drug war and the tactics used to fight it, but one thing is certain: it costs a heck of a lot of money. Some states are taking steps to spend their money wisely. One of these steps is de-criminalizing the possession of less than an ounce of marijuana. Massachusetts has already done so and Connecticut is considering following suit. Efforts to do so have failed in California, but the movement to ease the burden on our courts by removing small-time cases from the docket is gaining momentum.

How much could be saved? According to statistics compiled by LegalMatch, in 2007 44% of LegalMatch clients arrested for drug crimes were marijuana related. Federal statistics for the same period show that that 47% of all drug arrests were for marijuana possession. Nationally this works out to 775,137 marijuana possession arrests, or almost 10 times the amount of arrests for drug trafficking and sales.

Reducing the burden on our courts by shifting almost 3 quarters of a million defendants off the criminal docket could save a lot of money. Court costs for even the smallest of cases can still add up. A study of average court costs in Allen County, Indiana in 2001 show an average bill of $1,146 for processing drug offense charges. Factoring in inflation, this adds up to $1,345 in 2007 dollars. If we use this estimate for a national average (which seems on the low side as it is), that’s still over $1 billion spent simply processing marijuana possession offenses. That is not even taking into account the costs of other programs such as probation and incarceration.

Massachusetts estimates that it saves over $30 million a year by decriminalizing possession of less than an ounce of marijuana. How much can the nation as a whole save by following suit? Probably a few billion dollars. Although that may seem like chump change in the face of an $800 billion stimulus packages, that is still a lot of money that would be better spent elsewhere. In these tough economic times, we need to look everywhere we can to shed the extra fat. So let’s support a more rational criminal justice policy. It might just save you some money.

According to a new report issued by the World Health Organization, drug use is more common in the United States than in any other country in the world, including those with comparatively lax drug enforcement laws such as the Netherlands.  Americans are the most frequent users of cocaine and marijuana; for instance, 16% of Americans reported using cocaine as opposed to the next closest contender, New Zealand (4%).  Americans are also the most likely to use marijuana (42%). 

Which drugs are Americans using?  Not surprisingly, the most common illegal drug today is marijuana, followed by cocaine, and methamphetamine.  According the U.S. Drug Enforcement Agency, 42% of total drug arrests involve marijuana.  This figure takes on new significance considering that marijuana is more potent than it’s been in over 30 years. 

These findings comport with LegalMatch.com figures I gathered from 2005 through the end of 2008.  39% of people looking for a drug-related criminal defense attorney were arrested for a crime involving marijuana; while 20% of arrests involved methamphetamine, 15% involved cocaine, 11% involved crack, 10% involved other drugs such as prescription medications, 3% involved heroin, 2% involved ecstasy, and 0.2% involved steroids.

While it’s discouraging to know that despite spending almost $12 billion per year on drug prevention efforts, so many Americans continue to use, the White House has some positive news.   According to a recent press release, illegal drug use in America is on the decline. A report based on data compiled from workplace drug tests, a study conducted by the University of Michigan, and the U.S. Drug Enforcement Agency shows that America’s tough drug policies are reducing illegal drug availability and demand.  Specifically, there was a 25% decline in overall illegal drug use by youths from 2001 to 2008.  Cocaine on American streets dropped in purity by 32% and increased in price by 89%, indicating a lack of supply.  Further, nationwide workplace drug tests showed a 38% drop in positive results from June 2006 to June 2008.

While illegal drug use may be on the decline as the economy tanks, some reports indicate that people are increasingly turning to prescription “escape” drugs, such as painkillers and mood enhancers to dull the pain of a foreclosure or job loss.  Drug industry sales figures show that many Americans are forgoing expensive doctor visits and high-priced medications, and instead choosing to mask their pain with prescription painkillers and psychiatric drugs.  Additionally, DEA officials recently reported that prescription drug abuse is rising sharply, at about an 80% increase from 2002. 

Is one problem merely being replaced by another?  Maybe not if the new administration recognizes that drug problems come in many different forms.