Texas Criminal Lawyer Blog

Death of Volunteer Border Patrolman Raises Questions About Border Patrol's Priorities

Mon, 07 May 2012 20:30:47 -0600

The Border Patrol spends much of its time looking for people with certain suspicious characteristics, so that agents can pull them over at checkpoints like Sierra Blanca on "reasonable suspicion" and search their cars for weapons or drugs. But what happens when the person they should be suspicious of is the one they are most likely to trust? That was the case with J.T. Ready of Arizona, a volunteer border patrolman who, tragically, ended up murdering his girlfriend and her family before turning the gun on himself.

Ready's history with the border has a few things in common with the history of the Border Patrol itself. As Ready determined that there was a growing "narco-terrorist" threat along the Arizona-Mexican border, he amassed more and more weapons to fight, and persuaded more and more people to patrol the border with him in a brigade. Calling his group the "U.S. Border Guard," Ready frequently patrolled the Pinal County desert in search of immigrants or other suspicious people. He advocated for greater deterrents to be placed along the border--such as landmines.

Ready was also welcomed by state political figures, at least initially. He was mentored by Russell Pearce, the state politician responsible for crafting Arizona's SB 1070, one of the toughest immigration laws in the country. Later, these same people began to part with Ready as his views grew more extreme. However, no media reports suggest that Ready was ever taken aside for serious questioning, or had his house searched for evidence. As long as he was entirely upfront with his desire to point his large cache of weapons at "undesirables," he was more or less left alone.

Now that Ready has taken his own life and the lives of four others in such dramatic fashion, it may be time for border security advocates to ask uncomfortable questions. Such as whether border volunteers like Ready cause more problems at the border than they are worth. Or what the Constitutional boundaries exist for people like Ready, who are not state or federal actors bound by the Fourth Amendment, but nevertheless seek to perform certain federal functions, such as "security". Or whether it is time for the Border Patrol to take a step back and take a look at the big picture, and do its part to discourage offshoot groups.

More evidence is creeping up that the beefed-up response to various border "threats" may not be working or might not be necessary. A recent article found that predator drones, expensive unmanned aircraft designed to locate drugs and illegal immigrants, have been underperforming. The drones cost $3,000 per hour to fly and have barely half the number of flight hours that Customs and Border Protection had scheduled on the northern or southern borders. Meanwhile, there is other recent evidence that more Mexicans, at least, are returning to Mexico than are illegally crossing the border into the United States. And then there is the fact that there is little evidence that violence from drug cartels in Mexico has spilled over into the United States, despite border security advocates' claims.

Texas Senator Claims That Border Violence Is Harming the Texas Economy

Tue, 24 Apr 2012 00:41:41 -0600

According to Texas state senator Jeff Wentworth, border violence and drug trafficking are hurting the Texas economy. Texas law enforcement departments have responded by banding together to form what is known as "Operation Border Star," meant to confront criminal activity on both sides of the United States-Mexico border.

If Senator Wentworth is to be believed, the drug cartels appear to be working on multiple fronts to destroy public order, and have largely succeeded. They have been recruiting Texans to drive vehicles loaded with drugs across the border. They have trespassed onto the property of nearby ranchers, sometimes stealing equipment along the way. Finally, they have brought Texas politicians into their web, as this blog discussed, though one reason politicians might have to cooperate is to protect their families. The cash seized at the border is staggering, with $8.5 million seized since January of this year.

Meanwhile, Texas law enforcement officials have responded -- pardon the pun -- with guns blazing. As part of Operation Border Star, the Department of Public Safety has commissioned up to six patrol ships to police the Rio Grande River and the Intracoastal Waterway. Each one is equipped with night vision, automatic shielding, and, of course, "multiple automatic weapons." Supposedly these patrol ships have already found stolen property worth $23.6 million, as well as 46 kilos of cocaine and 25,000 pounds of marijuana. County jails are stuffed to the brim with people arrested for drug crimes. Police are involved in more high-speed chases than ever, as drug trafficking suspects try to evade search and seizure.

Senator Wentworth's concerns should not be dismissed offhand, since drug cartels and human traffickers pose a real danger to civilians. At the same time, there is evidence that this danger may be exaggerated. One recent article reports that even though Mexico has experienced over 50,000 organized-crime-related murders since 2007, the violence is not spilling over the border. An 83-page report called "Beyond the Border Buildup" found that cartel-related kidnappings were declining, but cautioned that despite the border build up, drugs were still flowing in and out of the country along understaffed international bridges.

With such a hot topic as drug trafficking, it is easy to lose perspective. But the one thing that is necessary when it comes to drugs and border security is to see the big picture --of what is necessary for safety and security, and what is not. If we continue to see the borderland as a hotbed of terror and plots to kill, kidnap, and traffic drugs, then no amount of tools will ever be enough to combat the threat. We just end up spending more state and federal money on shiny new weapons, like those high-powered patrol boats. Then we justify it by claiming that the threat is never dead and never will be. Meanwhile, criminal defense attorneys see the flip side. We see too many people pulled over by bored young Border Patrol cops at checkpoints like Sierra Blanca " looking for somebody to mess with". (This quote is from a veteran member of a local drug task force, during a bull session about the flaws of enforcement of drug laws in our area.) The result is that somebody's kids end up charged with possession of small amounts of marijuana or other drugs and forced to spend two or three days in jail, charged with grim sounding felonies such as Possession of Hashish or THC or "drug paraphernalia" (which can be anything from a pipe to an Altoids box). The politicians are playing to the crowd with the claim that no price is too high for the protection of our borders. But on a day to day level on the highways of Texas and other border states, away from the glitz and glitter of the shiny toys, the cost is the erosion of our constitutional right to be free from illegal search and seizure, and to go about our lives free from being "messed with."

Federal Government Threatens to Cut Funding for Juvenile Justice Programs

Thu, 19 Apr 2012 19:21:48 -0600

The federal government is poised to make a big cut to funding for state and local juvenile justice programs. That is bad news, given that the purpose of these programs is to help states comply with the Juvenile Justice and Delinquency Prevention Act of 1974. This Act was the first major federal legislation to shape state policy on juvenile justice. Its goals were to remove juveniles from adult facilities and to end the practice of sending both criminal and noncriminal minors to prison-like facilities for rehabilitation. Before the Act was enacted, many juvenile courts did not think twice of throwing minors into adult prisons for long periods of time without tailoring the sentence to the juvenile crime or giving the minor due process. That still happens far too often in Texas and elsewhere, and now it is about to get worse.

Federal aid for juvenile justice programs already had sunk by more than 50% to its lowest level in over a decade. The Coalition for Juvenile Justice, which represents state advisory committees in Washington, D.C., asked Congress to appropriate $80 million for "formula grants" to help states comply with mandates, $65 million for a Title V Delinquency Prevention Program, and $30 million for juvenile accountability block grants. The House appropriations committee responded by cutting the programs to $33 million, $65 million, and to nothing respectively. The elimination of juvenile accountability block grants could be especially damaging, since they are used by states and local governments to give juvenile justice officials a range of options for holding minors accountable that take into account their age and ability.

The more government-friendly Senate intends to provide a budget for these programs that is close to $300 million. But by the time the House and Senate agree on a budget (if they ever agree -- or, if more typically, they reach a stalemate while the programs twist in the wind), the number is likely to be lower than the current $263 million budget.

Why are juvenile justice programs vulnerable to cutting? Possibly because they have been too successful. Juvenile crimes such as drug possession are down, so the reasoning is that the government no longer needs to ensure that juveniles get a fair break, or have the opportunity to enter a program tailored to their needs. Everyone has learned their lesson since 1974, and no one will never make the same mistakes again, right?

Wrong. As stated before, the same mistakes are still happening, though perhaps not on as great a scale as nearly four decades ago. Kids are still thrown in adult facilities for juvenile crimes. Too many minors need a criminal defense attorney to ensure that they have basic due process. At a time when prisons are overcrowded, and states are discovering that treatment programs are a viable solution for adult crimes, it is a shame that the federal government's attitude is to make those alternative solutions less available for young people. Congress can tell itself that juvenile justice programs are not worth it, and the relatively tiny amount of money it saves (consider how much those programs cost compared to the defense budget) is worth it. Meanwhile, an untold number of minors face a more uncertain future.

President Obama Signs Law That Could Make Congressmen Guilty of Insider Trading

Mon, 09 Apr 2012 21:22:29 -0600

Recently, President Obama signed the STOCK Act, ensuring that members of Congress who did insider trading would be guilty of a federal crime.

The STOCK Act -- or Stop Trading on Congressional Knowledge Act -- was designed to prevent members of the House and Senate from profiting from knowledge that came from working on committees that dealt with certain businesses -- knowledge that was not available to the general public. Normally, profiting from insider knowledge about a company's profits, or other financial information, is considered insider trading and is a white collar crime. But it might not shock anyone to know that Congressmen were able to profit without consequences.

Congressmen like Representative Spencer Bachus of Alabama. In 2008, while the economy was crumbling and Congress was readying a $700 billion bailout, Bachus traded on insider information more than three dozen times. Bachus is now chairman of the House Financial Services Committee and claims that he did nothing improper.

That's because it wasn't improper then. Not until Congress was embarrassed by an expose on 60 Minutes, which mentioned several names in connection with insider trading. Public outrage ensued, and members of Congress rushed to redeem themselves. The STOCK Act will allow the public to see more of government officials' financial transactions. The Act requires that any public report of new transactions of more than $1,000 be posted online -- either 30 days after the individual was notified of a transaction in his or her account, or 45 days after the transaction. The new law applies not only to Congressmen and their staff, but also to the president, vice president, cabinet members, and 28,000 other senior government officials who already must file public disclosures. The House of Representatives already posts disclosure information over the Internet, but the Senate requires those who seek the data to come to a Senate office.

As icing on the cake, the law also blocks bonuses to Fannie Mae (FNMA) and Freddie Mac (FMCC) executives while each company remains under government conservatorship.

U.S. Supreme Court Endorses Prison Strip Searches in Florence v. Board of Freeholders

Wed, 04 Apr 2012 01:27:17 -0600

Those of us who take the Fourth Amendment seriously, with its "right of the people to be secure in their persons, houses, papers, and effects" from search and seizure, were dismayed by the Supreme Court's recent ruling in Florence v. Board of Freeholders. In a 5-4 decision, the Justices found that every person arrested and held temporarily could be subject to a routine strip search.

In 2005, Albert Florence was stopped in his car by a New Jersey state trooper. The officer checked a computer database and saw that Florence had an outstanding warrant. This warrant appears to have been a system error -- it was issued after Florence failed to pay a fine. Florence paid the fine, but the warrant remained in the system. As a result, Florence was arrested and taken to the Burlington County Detention Center. He remained there for six days before being transferred to the Essex County Correctional Facility. At both facilities, Florence was strip searched. At Burlington County, all of those arrested were expected to shower with a delousing agent. The agent would check the arrested person for scars, gang tattoos, or contraband. Florence claimed that part of the "search" included being forced to lift his genitals. At the Essex facility, things were no less invasive: Florence had his ears, nose, mouth, scalp, hands, armpits, and "other body openings" examined. It did not matter whether or not Florence had committed a federal crime, or whether Florence appeared to pose a threat: the procedure was the same for every arrested individual.

Florence finally sued the jail operators under the Fourth and Fourteenth Amendments, claiming that a person arrested for a minor offense should not be required to remove his or her clothing and expose private parts.

Wrong, said five Justices on the Supreme Court. If you are a jail inmate, you have no basic right to privacy. Even if you were not arrested for harboring drugs or for a violent offense. Even if your arrest was based on a mistake. Jails and prisons process hundreds of people each day, and nothing is more important than keeping jails orderly.

Yes, that is the justification given by Justice Kennedy, who wrote the opinion. The Court had previously upheld blanket policies designed to keep contraband out of jails, so why make exceptions now? Even if people who were merely arrested for minor offenses -- and may not even be guilty of anything -- were forced to undergo invasive and humiliating strip searches for no real benefit.

Innocence Project Finds That Texas Prosecutorial Misconduct Has Gone Unpunished Since 2004

Thu, 29 Mar 2012 21:06:24 -0600

The Innocence Project, a national public policy firm known for using DNA to exonerate convicted criminals, released a report finding that Texas courts have ignored prosecutorial misconduct 91 times since 2004.

The report was first discussed at a University of Texas symposium on the criminal justice system. Research was conducted by the Veritas Initiative, which reviewed all of the published trial and appellate court decisions addressing prosecutorial misconduct between 2004 and 2008. Veritas followed up by studying Texas's public attorney disciplinary records from 2004 to November 2011 to determine whether the prosecutors ever faced consequences for misconduct. The findings are enough to shake the confidence of even the most cynical criminal defense attorney.

Only one prosecutor was disciplined for misconduct during those seven years -- for an offense committed before 2004. Of the types of misconduct found, improper examination and improper argument were the main types of error. However, few of these resulted in a court reversing the conviction. In fact, out of 36 examples of improper argument, and 35 examples of improper examination, just three were reversed in each case. Texas courts were most likely to reverse cases where prosecutors failed to turn over Brady evidence -- that is, evidence fundamental to determining a suspect's guilt or innocence -- in violation of the suspect's constitutional rights. This occurred eight times, resulting in seven reversals. Of the types of cases most likely to have misconduct, murder cases (28% of the cases) and sex crimes (24% of the cases) led the way.

Though the findings are grim, there are a few caveats. First, nearly all of the errors were from cases that went to trial -- accounting for exactly 3% of Texas criminal cases. Among the cases where misconduct was raised, the Texas courts did not always address them directly. Second, several Texas court opinions are not in writing, and those that are in writing may not have been published. Finally, the courts' distinction between errors that are "harmful "and "harmless " does not give a clear picture of how serious the misconduct was-- just that the court found that it would not have affected the trial's ultimate outcome.

That said, any prosecutorial misconduct is serious, regardless of its effect on the jury's verdict. The study noted that few Texas DA's offices have any system at all for preventing major misconduct. Even when bar associations are informed, they often fail to provide necessary discipline. Hopefully the Innocence Project study will be a first step toward focusing the Organized Bar's attention on this serious matter.

Computer Hacker "Geohot" Arrested at Sierra Blanca Checkpoint for Drug Possession

Tue, 20 Mar 2012 00:37:37 -0600

A computer hacker known for being the first to "jailbreak" an iPhone wound up getting caught in a more traditional way -- at a Sierra Blanca border checkpoint for drug possession. George Holz, known online as "geohot," was on his way to give a speech at a SXSW conference when he was arrested, then later booked for felony drug possession.

This is an interesting case of contrasts. The high-flying cyber space hacker, who constantly pushed the boundaries of what was accessible or legal, was brought to the ground by enforcers in a drug war that has lasted for 30 years. A 22-year old with extraordinary talent was in trouble for the same reason as countless other border visitors. Holz shot into the limelight in 2008 by being the first to "free" his iPhone by physically taking it apart. He then jailbroke a Playstation 3, earning the wrath of SONY and a lawsuit that was later settled. Holz would go on to work for Google and eventually became a software engineer for Facebook.

When Holz passed through the Sierra Blanca checkpoint, drug-sniffing dogs barked at his car, alerting the Border Patrol. Border Patrol agents then forced Holz and his friends to leave the vehicle while they conducted a search. Ultimately the Border Patrol found a quarter ounce of marijuana and chocolate edibles containing less than one-eighth of marijuana in Holz's glove compartment. Holz had a prescription for medical marijuana from California, but as this blog explained previously, Texas does not recognize medical marijuana prescriptions from any state. Thus, Holz had no cover and the Border Patrol agents took him to the local sheriff's office.

According to various sources, instead of taking the actual amount of marijuana into account and giving Holz a citation, the sheriff took the weight of the entire chocolate edibles as the proper measure of how much pot they contained, in order to boost the charges. To make matters worse,California medical marijuana tests out as Hashish, which is a 2d degree felony in Texas. Holz was booked for a felony and forced to post $1,500 bail.

What lesson could one draw from this? That even those who manipulate the latest in technology can't manipulate the current criminal code as it relates to drugs? One obvious lesson, if the story about the sheriff is true, is that the danger of the intense focus on drugs is that it leads to far too many mistakes, if not outright abuse of authority. On the other hand, while Holz was unlucky that he had to post bail, he escaped a much worse fate. Any criminal defense attorney could tell you that Texas is pretty brutal toward marijuana users. Even those in possession of less than one ounce face a Class B misdemeanor charge, which carries potentially 180 days in prison and a $2,000 fine. Just possessing marijuana paraphernalia equals a Class C misdemeanor and a $500 fine.

Obama Fights Back Against the NSA's Plan to Constantly Survey the Internet

Fri, 09 Mar 2012 21:20:08 -0600

For too long, it seemed as though the federal government was eroding Internet privacy at an alarming rate, always in the name of "safety". Now someone is finally fighting back -- surprisingly, it's President Obama.

The National Security Agency (NSA) has been seeking to expand its role in protecting private-sector computers from cyber crimes. Last year, legislation was drafted that would have required companies in charge of providing critical services to allow their Internet traffic to be continuously scanned by computer threat data provided by NSA. If any of these companies found evidence of potential cyber attacks, they would be required to turn over the evidence to the federal government. NSA officials thought that a little more intrusion was a reasonable price to pay for preventing terrorist attacks. The companies would have likely disagreed.

So did President Obama. Both Obama and the Justice Department argued that if enacted, NSA would have unprecedented access to civilians' Internet usage. While NSA claims that the process would have been automated -- with no human involvement until an actual threat was detected -- the Obama administration argued that the Internet providers charged with the scanning would have become vulnerable to cyber threats themselves. This would open them up to needing to be scanned for threats, which would put the entire Internet under government cyber monitoring. A dystopian novel could not have predicted it so well.

The legislation permitting more cyber surveillance has been pulled, for now. However, a revised version is expected to be part of the cyber legislation making its way through Congress. Given the deserved criticism of the last Internet bill, there is little reason to be optimistic. Right now there are two competing bills in Congress -- a Democratic one and a Republican one. The Democratic bill requires infrastructure to meet minimum standards for guarding against a cyber attack, while the Republican bill permits businesses to share information about cyber attacks -- shields them from liability for any actions taken to protect their computer network. Why let the government invade your privacy when your boss can do it so much better?

Cyber space is still an unknown in many respects, with new rules constantly being written to define its borders. On the one hand, the government and businesses have a right to be concerned about certain emerging threats. Russia and China have become more aggressive about launching cyber attacks on other countries, while groups like Anonymous threaten a mass-scale attack on our government's computer network. Then there are the common, everyday white collar crimes committed by hackers and fraudulent dealers. Serious crime that hurts innocent people needs to be stopped. However, as always, the problem is finding the right balance between security and privacy. Constant surveillance for every little threat just opens up the potential for abuse. Relatively innocent behavior suddenly comes under the microscope, and innocent people are accused of things that they never did and never intended to do. You should not need to hire a federal criminal defense attorney after surfing the Internet. Let's hope that NSA's plan for surveillance gets massively scaled down, or dumped altogether.

New Report Finds That Federal Sentencing Varies Dramatically Depending Upon the Judge

Mon, 05 Mar 2012 23:00:57 -0600

Although the Federal Sentencing Guidelines were enacted in the 1980s to erase sentencing disparities, sentences passed down by federal courts still vary wildly from district to district. A new study suggests that the problem lies with individual judges, rather than the facts of the case.

The Transactional Records Access Clearinghouse (TRAC) report studied 370,000 sentences imposed by 885 judges from a across the country, between 2007 and 2011. It is the first study of its kind. Before, judicial decisions in criminal cases, for instance, were always too difficult to find because they could not be searched by the judge, only by the defendant or lawyer's name. Also, the United States Sentencing Commission typically excludes judges' names from its sentencing data to prevent individual judges from being singled out. TRAC accessed the data using the Freedom of Information Act.

What the TRAC report showed was that sentences for common crimes, such as drug crimes, could vary dramatically depending upon the district or the judge. Here in Texas, one Northern District judge issued typical sentences of 60 months, while another issued sentences of 160 months. On the other hand, the judges at the district court for Minnesota had little difference between them -- the low was 52 months and the high 64 months. A similar discrepancy was found in white collar cases. Of the discrepancies, the report noted: "[T]o the extent judges' median drug sentences depart from one another within the same district, these differences cannot be explained on the basis of the worthiness of the cases handled by individual judges. One or more other factors -- such as the pre-existing predilections of the judge assigned -- must be the source for these disparities."

TRAC does not go further than this, such as speculating why certain judges issued much greater sentences than another judge in the same district. There is no mention of the judges' age, political bent, childhood background, religious inclination, or other factors. In that respect, the judges' motivations remain a mystery, and only another dedicated examination of the facts could uncover a pattern rooted in ideology. At the very least, the study gives a sense of how suspects would fare throughout the country, and where it would be most unlucky to be caught with drugs or committing a white collar crime. Here in the Western District, the lowest median drug sentence is 12 months, the highest 92 months.

The situation is ironic. The Federal Sentencing Guidelines continue to carry much sway, despite the fact that they failed to meet their objective. The Sentencing Guidelines were set up as part of the Comprehensive Crime Control Act of 1984. They consist of a sentencing grid with 43 levels, four zones, and criminal history. Although the sentences that have resulted from the Sentencing Guidelines could be drastically different for similar crimes (such as the difference between crack cocaine and powder cocaine possession), it has been overlooked so long as the Sentencing Guidelines as a whole made the judges more consistent.

Anti-Drug Official From El Paso Indicted for Smuggling Marijuana

Mon, 27 Feb 2012 17:38:20 -0600

The number of people trying to smuggle illegal drugs across the U.S.-Mexico border every day may include Texas government officials. El Paso County Commissioner Guillermo "Willie" Gandara Jr. was indicted for conspiracy to possess with intent to distribute 50 kilograms of marijuana, as well as possession with intent to distribute. Gandara had previously condemned efforts to legalize marijuana, claiming that he supported "keeping marijuana out of the hands of kids and keeping marijuana proceeds out of the hands of cartels."

Gandara was arrested during a routine traffic stop at the Sierra Blanca border checkpoint. In addition to the conspiracy charges, he stands accused of going by the alias "Godfather" and maintaining property in El Paso for the purpose of distribution since November 2010. Gandara has appeared at the federal court in El Paso and now sits in an El Paso County jail without bond. Gandara's family is well known in El Paso, with his father and brother both having served on the school board or city council. Worth noting is that Gandara's father and brother are no strangers to accusations of law breaking and betraying the public trust. Willie Gandara Sr. was recalled as mayor of Socorro in May 2011 after being indicted in a public corruption investigation, while last month, Jesus Gandara became part of the "largest public corruption case in its history" as a superintendent in San Diego, California. If Gandara Jr. is found guilty, he faces up to 20 years in federal prison for each charge against him.

The Gandara family may be a unique case, but Gandara Jr.'s arrest has raised the question of how many other Texas public officials could be involved in the drug trade. Some have speculated that Mexican drug cartels like the Zetas and Sinaloa could have more public officials on their payroll.

In a situation like this, many would praise the Border Patrol's actions and claim that justice is served. A public official was subjected to the same search and seizure tactics as everyone else. And if the Border Patrol must pull someone over and arrest him at a checkpoint, isn't it right that it should be for the offense of smuggling large quantities of drugs rather than for having a personal stash in the glove compartment?

All of this may be true -- Gandara is innocent until proven guilty, and is entitled to representation by a criminal defense attorney -- and yet it still does not change the Border Patrol's fundamental problems. For all of the large-scale smuggling operations Border Patrol agents have successfully broken up, there are cases where the Border Patrol arrests individuals with negligible amounts of drugs who are otherwise law abiding. Is each success worth the cost of forcing countless people to defend themselves in an overcrowded court system?

Synthetic Marijuana: A Bigger Threat Than Ordinary Marijuana?

Fri, 24 Feb 2012 14:19:21 -0600

Over the past several years, use of synthetic drugs -- especially synthetic marijuana -- has been on the rise. Even though 40 states, including Texas, banned synthetic marijuana, recent news on synthetic drugs shows that there is no sign that teens intend to stop using it. As a result, in March 2011, the Drug Enforcement Administration (DEA) moved to ban the chemicals for making synthetic marijuana for at least one year. Now the House and Senate are in the process of making synthetic marijuana use a federal crime. The House passed a ban late last year on a 317 to 98 vote, while Senate passage is currently being blocked by Senator Rand Paul (R-Kentucky). With so much activity surrounding synthetic marijuana, it is worth taking a look at what it is, how it started, and whether it is worth such alarm.

Synthetic marijuana goes by multiple names, including K2 and Spice. It first appeared in gas stations across the United States in 2006, being sold as tea, incense, or herbs. Although manufacturers claim that synthetic marijuana consists of medicinal herbs that combine to create a "mild" hallucinatory effect, studies show that the herbs are actually sprayed with chemicals to create the effect similar to marijuana. It is likely that synthetic marijuana came into being because its manufacturers thought it could skirt prohibition laws by posing as something natural and even healthy.

However, evidence is mounting that synthetic marijuana is far worse than ordinary marijuana. While marijuana remains in your system for a relatively short amount of time, the effects of K2 or Spice remain in your brain and organs longer. Marijuana combined with alcohol has a very mild effect, while synthetic marijuana combined with alcohol can make people extremely ill. Some side effects of synthetic marijuana that you would not find in ordinary marijuana include vomiting, seizures, and trouble breathing. In the first 10 months of 2011, poison control centers handled 5,741 calls about synthetic marijuana, nearly double the calls received in 2010. Worst of all, synthetic marijuana has been linked to psychosis (while the psychosis effect of marijuana remains inconclusive) and suicidal thoughts.

Since synthetic marijuana only became popular six years ago, its long-term effects remain unknown. Still, it is safe to conclude that all of the concern about synthetic marijuana is warranted. Even so, lawmakers need to move cautiously in banning the substance nationwide. Senator Paul and other Senators raised a valid concern that a new law could interfere with legitimate pharmaceutical research, as well as send plenty of otherwise law-abiding users to prison. Federal criminal defense attorneys already have their hands full defending cases of regular marijuana use, let alone cases of synthetic marijuana use.

Also, even if certain synthetic marijuana compounds are banned (which seems inevitable) on the federal level, there will always be experimentation to arrive at new compounds that create the hallucinatory effects of marijuana. Meanwhile, this entire situation just highlights how inoffensive ordinary marijuana is by comparison. It makes one wonder if the best solution wouldn't just be to legalize marijuana, which would automatically make all of these synthetic drug combinations irrelevant.

Texas Officials Search for Health Care Options for Aging Prison Population

Thu, 16 Feb 2012 23:46:00 -0600

Back in August, this blog discussed a relatively new trend of prison closures in Texas. After decades of tough-on-crime rhetoric and tougher prison sentences, the cost of running a prison has risen steeply. One reason is because lengthy sentences have resulted in many prisoners reaching senior citizen status, requiring the health care that comes with it.

According to Human Rights Watch, "between 2007 and 2010, the number of state and federal prisoners age 65 or older increased by 63 percent while the overall population of prisoners grew only 0.7 percent in the same period." In Texas, although senior inmates make up only seven percent of the total prison population (approximately 160,000 inmates), they account for one third of the health care costs.

Now Texas officials are scrambling to find ways of providing low-cost health care. It used to be that the University of Texas and Texas Tech treated inmates, but that system may not be in place much longer, given that last year, their bill for service was $400 million. Just recently, the Texas prison board made a deal worth $46 million with Huntsville Memorial Hospital for the hospital staff to serve inmates who are incarcerated nearby. This type of deal might be extended to other regional medical facilities. Texas also has set up geriatric wards in each prison for inmates 60 years and older.

Otherwise, the Texas solution to stemming the costs of old age is to not have so many inmates reach old age. That is, to find alternatives to putting people in prison. This includes putting more money into rehabilitation programs for drug use and other crimes. Yet the effects of that approach won't be felt for many years. Meanwhile, inmates are getting older faster than non-inmate senior citizens of the same age. They have physical and mental health issues that pose a challenge to any medical staff.

How did the prison population reach this point? Again, much of it has to do with the tough-on-crime attitude that was prevalent for far too long, since at least the 1970s. It can be seen in the Federal Sentencing Guidelines, which were established in 1984 and have been adopted in many states. They were meant to produce "fairness" in sentencing, but have often had arbitrary, overly harsh results of their own. The most infamous example was the sentencing disparity between crack cocaine and powder cocaine, which persisted until 2010. Although the Sentencing Guidelines are meant to be advisory, they continue to carry great weight with federal judges.

Despite Drop in Border Apprehensions, Border Patrol Collects $331 Million in Overtime

Tue, 07 Feb 2012 21:01:50 -0600

Border apprehensions may be falling, but a Border Patrol agent's work is never done. At least based on the number of overtime hours agents are working these days.

Border Patrol agents police the northern and southern borders, especially border checkpoints like Sierra Blanca, mainly for drug and immigrant smuggling. However, border apprehensions are the lowest they have been in 40 years. If that is the case, then why do Border Patrol agents possibly need overtime hours?

Travel is one explanation. Agents may need to drive from a remote location to their home base. Bureaucracy is another -- filling out paperwork from an arrest or a search and seizure. Then there is the unpredictability of hunting down suspects, which can take several hours. All of this adds up to $331 million worth of overtime -- more than twice the amount in 2006, at $155.8 million. This, despite the fact that one million arrests were made in 2006, compared to 340,000 in 2011.

But if apprehensions are down, why are so many overtime hours spent trying apprehend the suspect? Have suspects really become that much craftier since 2006? The perennial reason given is that a safe border requires a strong Border Patrol presence. Border Patrol Deputy Chief Ronald Vitiello claims: "[A]gents are responsible for securing the border against all threats. This means that agents must have the flexibility to develop intelligence, act on that intelligence, interact with the community and work with their law enforcement counterparts on illegal activity that has a nexus to the mission." Vitiello does not explain why this is truer now than it was in 2006.

Nor does he explain why Border Patrol agents on the much quieter northern border collect overtime as easily as agents on the busy southern border. Despite an average of three arrests per agent in 2011, Border Patrol agents on the northern border earned a combined $37 million. Security well worth every penny.

Will Obama's New Federal Mortgage Fraud Unit Push the Investigation Too Far?

Sat, 28 Jan 2012 00:14:57 -0600

In his State of the Union address, President Obama announced that a new unit had been formed for the purpose of investigating mortgage fraud and other white collar crimes. The new unit -- led by New York Attorney General Eric Schneiderman, known for taking a tough stand against mortgage lenders -- will have 55 prosecutors, FBI agents, and analysts. Together, they will examine what exactly caused the "massive market failures" that led countless people to lose their homes to foreclosure.

The reasons behind the economic collapse that shook the world are almost too complex to sort out. But one basic storyline is as follows: Mortgage lenders began to engage in subprime lending, or lending to individuals with poor credit histories. They did so at a time when home values were rising quickly. It seemed like a win-win situation: mortgage lenders could reap huge profits while the borrowers could buy the house of their dreams. Often, mortgage lenders pushed "adjustable rate mortgages," where the monthly mortgage payment started low, then eventually increased. When housing prices finally started to drop, borrowers found themselves with higher mortgage payments and unable to refinance to pay off the loan. Families everywhere could not make payments and mortgage lenders started to foreclose. To make matters worse, mortgage lenders had packaged loans together as "mortgage-backed securities" and sold them internationally. When the loans failed, the securities became worthless and many of the investment banks that bought them collapsed.

Today many people are still defaulting on their mortgage payments and mortgage lenders are foreclosing on their houses. Many claim that mortgage lenders are going so far as to commit mortgage fraud in order to swindle people out of their homes. Mortgage fraud is a federal crime that consists of a misstatement, misrepresentation, or omission that goes to the heart of the agreement. It isn't just a small oversight -- like saying the monthly payment is $995 when it is actually $1,000 -- but a misrepresentation that intentionally led the borrower to believe something that wasn't true, and to act on that belief. Mortgage lenders have been accused of falsifying information on home loan documents, without the borrowers' knowledge, in order to make it easier for the borrower to get the loan, only to turn the tables once the borrower (inevitably) defaulted.

While the mortgage lending industry desperately needs to be kept honest, for its sake and that of the general public, we need to be careful not to assume that mortgage lenders are always dishonest and after your house. The unfortunate truth is that while there were unscrupulous lenders, there were people on both sides who believed the hype -- that home prices would rise forever and ever and no loan bore too much risk. With hindsight, we can say that that attitude was foolish, that is still far different from peddling mortgages that the lender knew the borrower could not afford. It shouldn't be a reason to hire a criminal defense attorney.

Furthermore, mortgage lenders often don't want to foreclose upon a house. It often involves long months of litigation, while the mortgage goes unpaid. Then, when they try to sell the house, it goes for far below its original value. So while the new investigation unit is long overdue, one hopes that they are able to keep things in perspective -- not lump the foolish in with the truly criminal.

Supreme Court Rules That GPS Tracking Violated Suspect's Fourth Amendment Rights in United States v. Jones

Wed, 25 Jan 2012 22:45:41 -0600

Back in October, this blog discussed a case called United States v. Jones that was about to be heard by the United States Supreme Court. The question before the Court was where the Fourth Amendment draws a line between a valid search and seizure and one that violates the Constitution. In Jones, FBI agents and local police officers attached a hidden GPS system to a car belonging to Antoine Jones, whom they suspected of trafficking cocaine. They then used the GPS system to track Mr. Jones to a stash house, where he was later arrested. Since in past cases, like United States v. Karo, the Supreme Court found that certain tracking devices did not violate the Fourth Amendment, many wondered if the current Supreme Court Justices would erode the right to be "secure in [our] persons, houses, papers, and effects" even further.

As it turns out, the answer is no. The Supreme Court issued its decision on Monday, unanimously reversing the conviction of Mr. Jones for drug trafficking. All of the justices agreed that the conviction could not stand when the evidence was invalid -- the FBI and police installed the GPS device without the protection of a warrant, having waited too long (beyond the warrant's 10-day window) to install the device. However, the Justices differed on what overturning the conviction meant for Fourth Amendment protections. Five Justices supported the lead opinion, written by Justice Scalia, while four Justices supported Justice Alito's rationale.

Justice Scalia wrote that there was no doubt that the government "physically occupied private property for the purpose of obtaining information," which made the GPS tracking device a search within the meaning of the Fourth Amendment. This notion of unlawful search was based on the common law notion of trespass, as understood by the drafters of the Constitution, rather than the newer Katz v. United States rationale, which states a search is unlawful if it violates the suspect's reasonable expectation of privacy. Scalia argued that the Katz was an addition, not a substitute for, the common law trespass test.

Justice Sotomayor, in her concurrence, agreed with Justice Scalia's rationale and also added: "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties." Sotomayor gave examples of disclosing your phone number when you text and phone, or an IP address when you surf the Internet. She doubted "people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year." However, their Constitutional protection could only be assured if the courts stopped treating secrecy as a prerequisite to privacy.

In his concurrence, Justice Alito argued that the Katz reasonable-expectation-of-privacy test should be used because there were no eighteenth century situations that could be compared to the technology of today's world. There did not need to be a physical trespass in order for violation of privacy to occur.