Friday, November 30, 2012

Leon County Proposes Adult Civil Citations for Minor Nonviolent Crimes

Minor non-violent offenses include but are not limited to:  simple possession of alcohol, gambling, public intoxication, disorderly conduct, petty theft and trespassing.  Any of these indiscretions has the potential of landing someone in jail.  In Florida where an estimated $2.4 billion in the fiscal year of 2010-2011 in prisons,  “non-violent offenders account for as much as seven out of 10 prison admissions.”[1] Florida’s prison population has more than doubled since 1990.   

In attempts to deal with this situation, on October 31, 2012, law enforcement officials in Leon County, Florida, announced that starting in December 2012, they would be the first county in Florida to serve as a pilot program to issue civil citations as an alternative for arresting adults.  However, in order for an adult to receive a citation, as opposed to be arrested, the crime committed must be a minor non-violent crime and a first offense.

This pilot program will mirror the successful Juvenile Civil Citation model, an alternative to arrests for minor crimes that has been in place for juveniles for the past 17 years.  The Juvenile Civil Citation program is backed by the Florida Statute 985.12 which authorizes law enforcement officers to issue, a first time youth misdemeanor offender, a civil citation in lieu of arrest.[2] This choice of a citation as opposed to arrest is based on the discretion of the law enforcement officer.

Once the youth is in the civil citation program, the child will then have to fulfill certain requirements including:  (1) undergo assessment, (2) complete a certain amount of community service hours, (3) participate in intervention services that treat underlying cause of their crime, and (4) fulfill other sanctions such as payment for damages incurred, or a letter of apology to the victim.  If the child fulfills all of the requirements he will not have an arrest record.  

The program in place for juveniles has several benefits for the offender including:  no arrest and addressing the underlying issue of the crime.  Additionally, there are benefits to the community as a whole.  For one, addressing the underlying causes of a crime reduces its re-occurrence in the future.  Additionally, it is cost-effective and frees up resources and funds.  In 2010, it was estimated that processing a child through the system would cost $5000 versus $386 for the cost of a civil citation.  Civil citations for first time misdemeanor offenders was estimated to save Florida Taxpayers $157,849,554 in one year alone.[3]

The adult civil citations programs would be similar although it would not be currently backed by a Florida Statute as it is currently in a pilot phase.  The first time offending adult who committed a minor non-violent crime would:  (1) undergo assessment, (2) complete a certain amount of community service hours, (3) participate in intervention services that treat underlying cause of their crime, and (4) fulfill other sanctions such as payment for damages.  Additionally, the adult receiving the citation would be in charge of paying all the costs of the program and if successfully completed would have no criminal record.[4] Similarly to juveniles, who receives a citation and who gets arrested for minor offenses will remain discretionary on the law enforcement officer.

The benefits that could result from this program are readily apparent and similar to those for the Juvenile Civil Citation Program.  Similar benefits include:  freeing up resources, reducing costs of processing, avoiding costs, and reducing recidivism.  The Florida Department of Juvenile Justice reported that in “2009-2010, roughly 7,000 young people statewide went through the civil citation process, with just 7 percent re-offending.  In comparison, one-third of adults released from Florida prisons re-offend within three years.”[5] Leon county and proponents of this program hope that these numbers will carry over to the adult population.  Although the benefit for the community will be the same, there would be additional benefits for the first time offender from avoiding having a criminal record.

 A criminal record contains a person’s arrests and convictions regardless of the crime committed.  Imagine you are a college student and are arrested for public intoxication.  This can have a lasting effect on a person’s life and can reduce future prospects of education, financial aid and employment.   A criminal record can be particularly problematic if your job is in the area of education, the military, nursing, education, or a job involving children or the elderly.  The severity of the crime committed matters, but being convicted and/or arrested for any crime can have a detrimental effect.  A first time offender would potentially be spared these consequences through the program.

There are some who might oppose this program but there are several additional points to consider.  The point of the system in place is not only to punish people for their crimes but also to prevent future crimes.  Implementing this program would allow for the offender to be punished by way of fulfilling the necessary requirements and could serve to mitigate future crimes as it does in the Juvenile Civil Citation program.  It is also important to reiterate that this program is meant only for first-time offenders and so if a person commits a second offense they can be jailed for that.

Additionally, The Florida Smart Justice Council stated that in 2011, 33 percent of non-violent drug offenders repeat within three years.  However, 82 percent of those who complete community drug treatment successfully avoid re-offending within three years. “[1] The fact that the offender must address through intervention services the underlying issue of their crime is helpful in mitigating future crimes.  It is not necessary for the first time offender to be sent to prison in order to “learn their lesson.”

Elizabeth Rivera
Blogger, Criminal Law Brief 


Tuesday, November 27, 2012

Judge Sentences Teen to Church: Creative Sentencing or First Amendment Violation?

Oklahoma district judge Mike Norman sentenced 17 year old Tyler Alred to ten years of church for DUI manslaughter.  The teen had alcohol in his system when he hit a tree and his 16 year old passenger was killed.  Alred was not opposed to the sentence, in fact, he already attends church regularly and agreed to the church attendance mandate.  The victim’s family also agreed to the mandate.  However, the American Civil Liberties Union (ACLU) is strongly opposed to the sentence believing that the sentence violates the Establishment Clause and the Free Exercise of the First Amendment.
The Establishment Clause of the First Amendmentprovides that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof . . . .”[i]  Contrary to what many people believe, the Constitution does not require a complete separation of church and state.[ii]  Consequently, the Establishment Clause has been applied differently amongst the States.  Some states suggest that the Establishment Clause is a total separation of church and state.  In contrast, other states have said, “total separation is not possible . . . and could itself become inconsistent with the Constitution.”[iii]  Nonetheless, state courts have made it clear that the government cannot encourage participation in religion.[iv]  Thus, “[t]he government may not coerce anyone to support or participate in religion or its exercise . . . .”[v]

Creative sentencing is not a new concept.  Judges have been coming up with creative ways to sentence defendants for years.  When a mother recently drove on a sidewalk to avoid a school bus, a judge ordered her to wear a sign saying “only an idiot drives on the sidewalk to avoid a school bus.”  In 2005, a judge sentenced a woman to spend the night in the woods for abandoning her thirty-five kittens.  This same judge, Judge Michael A. Cicconetti, also sentenced a man to stand on a corner with a 350 pound pig and a sign that said “this is not a police officer” as punishment for calling a police officer a pig.  Judge Cicconetti has used creative sentences for several non-violent offenders and found that people that received a creative sentence reoffended less than those who received traditional sentences.

Sentencing defendants to church is also not a new concept­­––judges have been sentencing people to church for years with few challenges when the defendant’s only other option is jail.  In 2007 an Iowa judge sentenced a habitual offender to attend eight consecutive Sunday church services and a counseling program offered by a Baptist church.  A Louisiana judge sentenced 540 defendants to attend church from 1993 through November of 1994.[vi]  A complaint was filed against this judge with the Judiciary Commission but the defendants did not legally challenge their church sentences.  In fact, after the complaint was filed the judge wrote to all 540 defendants and advised them if they objected to their church sentence they would have the opportunity for resentencing.  Only 10 out of the 540 defendants elected to be resentenced.

Although few defendants challenge their church attendance mandates, the defendants that do challenge these mandates are victorious.  When a Kansas man, Terry Evans, challenged his probation condition that he attend a specific church for a five year period, the court concluded that “the imposition of religious conditions on Evans unreasonably restricted his constitutional freedom.”[vii]  Evans was required to go to a specific church and do 1,000 hours of maintenance work at the same church.  The court found that this condition violated Evans constitutional right to free exercise of religion.  Even when the defendant is not required to attend a specific church courts have found a constitutional violation.  When a Louisiana man was ordered to attend church as a condition of his probation, the court held that Louisiana “has a strong separation of church and state, and making church attendance a condition of probation threatens this separation.[viii]

Although the church attendance mandate is a condition of Tyler Alred’s probation, the judge gave him a maximum ten year deferred sentence.  Therefore, if Alred does not go to church he is facing ten years in prison.  Essentially the judge has given Alred two choices, go to church or go to jail, making this sentence coercive.  The fact that the Alred already attends church regularly and is not opposed to the sentence does not make the sentence constitutional.  A ten year church attendance mandate could pose problems later in the teen’s life.  He could get a job in the future that required him to work on Sunday’s which could preventing him from going to church or he could grow up and become an atheist.  While this sentence may be a fair sentence for Tyler Alred considering the circumstances of his offense, it is a clear violation of the First Amendment.  But, should we intervene when the alternatives for some of the defendants sentenced to church is far worse? 

I asked a group of teenagers if they would they choose church or jail in a situation similar to Tyler Alred’s.  The teens unanimously said they would choose church.  One teen, who is a Christian, said he would even go to a Synagogue or Mosque if it meant avoiding jail.  If given the options of church or jail, how many people would really choose jail?  This could explain the lack of challenges to these types of sentences; most people would rather go to church than jail regardless of the constitutional violation.   

Tonya Davis
Blogger, Criminal Law Brief

Image courtesy of The Christian Science Monitor 

Tuesday, November 20, 2012

Conduct Unbecoming Of An Officer And A Gentlemen

Just days after President Obama was re-elected, the President accepted CIA Director and retired Four-Star General David Petraeus’s resignation.  An FBI investigation had uncovered that Petraeus was having an extramarital affair with his biographer and Army reserve officer Paula Broadwell.  This extramarital affair has not only been an embarrassment to the intelligence community (Broadwell was found with classified documents and General John Allen has also been dragged into the issue), but is a criminal offense for both participants.

The Uniform Code of Military Justice (UCMJ) identifies what is conduct that is unbecoming of an officer and a gentlemen and makes such conduct a violation of 10 U.S.C. § 933 and § 934 and the Manuel for Courts Martial. The violator is subject to court-martial.  Broadwell, as an active reservist, is obviously subject to the UCMJ.  But so is Petraeus, as a retired officer entitled to retirement pay, he is under the UCMJ’s jurisdiction pursuant to 10 U.S.C. § 802(a)(4).

Now the real issue is whether we can expect Petraeus of Broadwell to actually face a court-martial. Not all adulterous conduct is subject to court-martial.  Adulterous conduct that discredits the service or is prejudicial to good order and discipline is subject to court-martial.  Discredit means to injure the reputation of the armed forces and includes adulterous conduct that has a tendency, because of its open or notorious nature, to bring the service into disrepute; make it subject to public ridicule; or lower it in public esteem.  While adulterous conduct that is private and discreet in nature may not be service discrediting by this standard, under the circumstances, it still may be determined to be conduct prejudicial to good order and discipline.
This affair was by no means private and discreet.  It seems to perfectly fit the type of adulterous conduct that is subject to court-martial because the affair has injured the reputation of the armed service, it is notorious in nature, and it has made the armed service a subject of public ridicule.  Also given that the affair has entangled other prominent officers such as General John Allen, it has also been prejudicial to the good order and discipline of the armed services.  So it seems, the Petraeus affair is a prime opportunity to make good use of the UCMJ provision that prohibits adultery.

There are a number of reasons to dismiss such a court-martial as a Puritanical crackdown on sex.  After all, outside the United States, almost no other industrial country lists adultery in the criminal code.  However in twenty-three states, including David Petraeaus’ state of residence, Virginia, adultery is a crime.  But most states have purged their codes of laws regulating cohabitation, homosexuality, sodomy and fornication, especially after a 2003 Supreme Court decision Lawrence v. Texas.  The Military Courts have also recognized that the Lawrence decision limits the scope of UCMJ.  See e.g. United States v. Meno, ARMY 20000733 (Army Ct. Crim. App 2005).  However, the Meno court did explicitly recognize that notorious adultery is still punishable.
Regardless of the sexual conduct, the acts of Four Star General David Petraeus and Lt. Colonel Broadwell have harmed the reputation of the United States Army.  Their actions prompted an FBI investigation, will prevent General John Allen from being confirmed as NATO’s Supreme Allied Commander in Europe, and prompted Petraeus’s resignation as Director of the FBI.  At its least, this was conduct unbecoming of an officer and a gentleman.

Ryan Hatley
Blogger,Criminal Law Brief

Friday, November 16, 2012

Criminal jurisdiction over the U.S. service members who sexually assaulted an Okinawan woman in Japan

On November 2, 2012, a U.S. Air Force member stationed at Kadena Air Base in Okinawa, Japan, broke into a family residence and assaulted a teenage boy.  This occurred less than three weeks after the alleged rape of an Okinawa woman by two U.S. sailors.  After the alleged rape by the U.S. sailors on October 16, 2012, the U.S. Armed Forces imposed an 11 PM to 5 AM curfew on all U.S. service members stationed in Japan.  The November 2 incident, however, proved that the curfew was not an effective means to prevent crimes committed by U.S. service members stationed at military bases in Japan.
These incidents are nothing new to Okinawans.  In 1995, three U.S. service members stationed at Marine Corps Air Station were charged with sexual assault of a 12-year-old Okinawan girl.  Under the United States-Japan Status of Forces Agreement (SOFA), the U.S. insisted on having criminal jurisdiction over U.S. service members.  This led to massive anti-American demonstrations.  As a consequence of these protest, the U.S. agreed to consider handing over suspects prior to an indictment in serious cases such as a fatal traffic accidents, rape, or murder.

Despite strong sentiments against the presence of U.S. military bases in Japan, both Japan and the U.S. have great interests in keeping the U.S. military bases open.  With threats from China and North Korea, Japan and the U.S. publicly affirmed their alliance.  Following World War II, the U.S. and Japan concluded the SOFA, the framework under which the U.S. armed forces operate within Japan.  Under the original SOFA, which was signed in 1951, the U.S. maintained jurisdiction over U.S. military personnel.  Recently, however, the U.S. tried to be more cooperative than in the past by taking preventive measures such as temporary curfew, bans on alcohol consumption, and increased education efforts in the areas of violence prevention and sexual assault.  Further, SOFA was modified to allow Japan to receive some jurisdictional benefit after the 1995 rape incident.  Nonetheless, the jurisdiction provision of the SOFA continued to generate much controversy. 

The U.S. argues that it should maintain criminal jurisdiction over its military personnel due to fundamental differences between the U.S. and Japanese criminal justice systems.  The proponents for the U.S. maintaining jurisdiction argue that “the Japanese criminal system is . . . incompatible with the American idea of due process and an individual’s right to defend themselves.”  For example, proponents argue that the police and prosecutors only release a suspect upon confession.  Moreover, “detentions in Japan can last as long as 23 days without access to an attorney, and physical abuse and food deprivation are not uncommon."  One legal scholar, however, points out that the Japanese justice system is “fairer than critics allege” because SOFA guarantees the protections of basic rights and Japanese newly reformed interrogation system lessens the potential of abuse in the interrogation process.

In the past, the U.S. experienced a total or partial loss of its foreign military bases: total loss of its French bases in the 1960s and of its Philippine bases in the 1990s, partial loss of its Spanish bases in the 1970s.  Although both the U.S. and Japan have shared security concerns, the Japanese government will not completely ignore the domestic unrest created by anti-American sentiments.  Although the U.S. has preventive measures to avoid the total loss of the U.S. military bases in Japan––that turned out to be not very successful––the U.S. needs to make more efforts to eliminate the tensions by respecting Japanese sovereignty.  Unless the U.S. improves its relations with Japan and creates a more effective alliance, it may experience another total loss of its base again.

Min Ji Ku
Blogger, Criminal Law Brief

Tuesday, November 13, 2012

Counterfeit Drugs: What’s in Your Medication?

Real or fake? Most consumers wouldn’t know the difference just by looking at the pills.  From September 25, 2012 to October 2, 2012, the Food and Drug Administration (FDA) ordered the shutdown of over 4,000 websites selling counterfeit drugs to unsuspecting consumers in the United States.  The operation was a part of an internationally coordinated effort designed to stem the sale of counterfeit medication worldwide.  The Department of Health and Human Services estimates that about forty percent of Americans take at least one prescription medication.  It is no secret that many Americans cannot afford their prescription medications. Being cost conscious, some American consumers look to obtain medications from sources abroad that offer lower prices than what are available domestically.  However, this seemingly economical decision does not come without great risk.

The drugs most often counterfeit in the United States are typically expensive ones used to treat high cholesterol, erectile dysfunction, high blood pressure, HIV/AIDS, and cancer.  But counterfeit drugs can contain toxic ingredients that can cause significant health problems and unintended side effects.  Because the drugs are not regulated by the FDA, the drugs can include the wrong active ingredients, no active ingredients, toxic ingredients, or ingredients in the wrong quantities.  This effectively eliminates any beneficial qualities of the drugs and may even exacerbate a pre-existing medical condition by letting the condition go untreated.

The counterfeit drug market is one of the worlds fastest growing criminal enterprises.  Pharmaceutical giant, Pfizer, claims that profits from the sale of counterfeit drugs surpass those made from heroin and cocaineThere are numerous reasons why the counterfeit drug market is flourishing, but Adam Smith, the father of modern economic theory, might suggest the reason is rooted in the fundamental concept of supply and demand economics.  Globally, the demand for medication is astronomical while the supply is limited. This provides an ideal environment for counterfeiters to produce knockoff drugs.  Due to the lack of regulation, the drugs often have improper ingredients.  Since counterfeit manufacturers can essentially produce these drugs in their backyard with no overhead costs attributed to complying with safety regulations, the profit margins are extremely high 

Additionally, counterfeit drug manufacturers have greatly benefited from the proliferation of online pharmacies that sell medication directly to consumers.   According to the National Association of Boards of Pharmacy, less than 3% of online pharmacies currently comply with state and federal standards.  While certified online pharmacies provide many benefits to consumers, including convenience, consumers must be wary of online pharmacies that are too convenient or offer drugs at a greatly discounted price.  Often, illegitimate online pharmacies will offer to sell prescription medication without a doctor’s prescription.  These bogus and illegal online pharmacies generally sell drugs produced in foreign countries where the regulatory capacity for medications being sold abroad differs from domestic regulations.  INTERPOL reports that over 100 countries were involved in the latest global strike on illegal online pharmacies.  Such a large effort is required because often, the counterfeit drugs do not come from one country alone.  In one case, counterfeit drugs were traced being moved from China, to Hong Kong, to Dubai, to London, to the Bahamas, back to London, then finally to the United States. 

To protect the American public from the distribution of counterfeit drugs, the federal government has passed several laws under which counterfeiters can be prosecuted.  The Food, Drug and Cosmetic Act (FD&C), first passed in 1938 and subsequently amended, takes aim at counterfeit drug manufacturers by making it illegal to introduce any drug into interstate commerce without the approval of the FDA.  In the 1980’s Congress passed the Prescription Drug Marketing Act, which supplemented the FD&C by making it illegal for anyone, except a drug manufacturer, to import a prescription drug into the United States that was originally manufactured in the United States then sent overseas.  Today, the federal government only allows two types of drugs to be legally imported:  drugs manufactured by approved FDA facilities abroad, and drugs that were originally produced in the United States, shipped abroad, then reimported by the original manufacturer. Any drug manufactured in a foreign facility not inspected and approved by the FDA is illegal.  However, the penalties under laws such as the FD&C for counterfeit drug manufacturing and distribution are generally not as harsh as those regulating narcoticsFor example, 21 U.S.C. § 331(a)-(c) makes it illegal to introduce counterfeit drugs in interstate commerce.  The maximum penalty for violating 21 U.S.C. § 331(a)-(c) is three years in jail and a fine of $250,000.  On the other hand, under the United States Controlled Substances Act the maximum penalty for importing, manufacturing, or distributing narcotics can be as severe as life imprisonment.  

Some legislators believe strengthening the criminal penalties for counterfeit drug production will help combat the problem.  As of October 2012, the Counterfeit Drug Penalty Enhancement Act of 2011 is before the House Subcommittee on Crime, Terrorism, and Homeland Security.  The Act seeks to impose stricter penalties under the current federal criminal code for trafficking counterfeit drugs.  Recently, Congress passed the SAFEDOSES Act, which enhanced criminal penalties for stealing and altering prescription drugs.  But will increasing the penalties for producing counterfeit drugs and rebranding prescription medication solve the problem?
Supporters of increasing criminal sanctions suggest minimal penalties provide incentives for criminals to abandon the illicit drug trade for counterfeiting prescription medications.  Authorities point to the case of United States v. SantistebanIn Santisteban, Iggy Santisteban was convicted of conspiracy to defraud the United States and sentenced to thirty-seven months in jail.  Santisteban became involved with the counterfeit drug trade when he met Julio Cruz.  Cruz was a former cocaine dealer who abandoned the illicit drug trade in favor of smuggling counterfeit prescription medication.  Santisteban, who owned a printing business, produced over forty different types of fraudulent drug labels for the counterfeit drugs Cruz was smuggling into the United States.  Proponents of increasing the criminal penalties associated with counterfeit drug crime argue that stricter criminal penalties may have initially deterred Cruz from entering into the counterfeit drug trade.  

However, increasing the criminal penalties for such crimes may be an ineffective way to combat the problem.  Unlike narcotics, many counterfeit drug manufacturers can cut out the middleman by distributing directly to consumers through internet sales.  Therefore, counterfeit drugs must be stopped at the source of production. However, there are inherent logistical difficulties with prosecuting international criminal conduct.  It is difficult to conduct investigations in foreign countries because it requires a coordinated effort with the government of the foreign country in which the investigation will be conducted.  Another potential issue is extradition.  In some cases, the United States might be barred from pursuing criminals in particular countries.  As a result, the federal government may be reluctant to allocate scarce resources to pursuing small-scale counterfeit operations in countries that are diplomatically uncooperative.

Nevertheless, in order to alleviate the counterfeit drug problem at home, the federal government should look abroad.  According to the World Health Organization, only about 20% of the 191 member states have well developed drug regulation policies.  Weak regulatory policies increase the distribution of counterfeit drugs on the global market.  Additionally, many drugs made for export are not held to the same regulatory standards as those made for domestic use.  Applying political pressure on foreign countries to increasing regulatory oversight and the standards to which exported pharmaceuticals are held may be a more effective remedy than increasing criminal sanctions at home.

However, there are measures that the FDA and other regulatory bodies can take to combat the problem within the United States.  The FDAhas compiled an extensive list of ingredients that are most often substituted for real active ingredients in counterfeit medication.  The most popular ingredients are then targeted for testing at the boarders in hopes of identifying and confiscating counterfeit drugs before reaching the marketplace.  Another possible solution is to improve methods of identifying authentic medication so that counterfeit medication is easier to recognize.  For example, unique identifiers are printed on currency to prevent the circulation of counterfeit bills.  In 2010, the FDA implemented a similar system to track authentic packages of medication passing through the supply chain.  Nevertheless, additional protections are needed since the problem of counterfeit drug distribution, especially over the internet, only continues to grow.

In sum, there are many factors that lead to the manufacture and trade of counterfeit medication––ineffective regulatory policies, poor government cooperation, weak enforcement measures, lax criminal penalties, disparities in economic strength, lack of awareness––the list goes on.  But the judicial branch is a lightweight in a heavyweight fight.  Increasing criminal penalties alone is likely not the haymaker that is going to knock out the counterfeit drug problem.  However, for the sake of public health, hopefully the right combination of counter punches can be found to bring the counterfeit drug problem to its knees before it causes any more harm. 

Jared Engelking
Blogger, Criminal Law Brief
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